3-2 Brief in Opposition to Motion to Proceed With Discovery

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CAUSE NO.: DC-12-10604

MELISSA KINGSTON, § IN THE DISTRICT COURT

§

Plaintiff, §

§

v. § DALLAS COUNTY, TEXAS

§

AVI ADELMAN, §

§

Defendant. § 44th

JUDICIAL DISTRICT

DEFENDANT’S SUPPLEMENTAL BRIEF IN OPPOSITION TO

PLAINTIFF’S MOTIONS TO PROCEED WITH DISCOVERY

TO THE HONORABLE JUDGE CARLOS CORTEZ:

Pursuant to the Court’s directive during a hearing on February 28, 2013, Defendant AVI

ADELMAN files this supplemental brief with the Court.

I. QUESTIONS PRESENTED

1. Are the timing requirements in TEX. CIV. PRAC. & REM. CODE §27.004 jurisdictional?

2. If Plaintiff failed to secure a hearing within 30 days of serving its Anti-S.L.A.P.P.

Motion to Dismiss, and the Court’s docket conditions would have allowed a hearing much

sooner than March 4, 2013, should the Court grant a full hearing on the merits of the motion?

II. ARGUMENT & AUTHORITIES

A. The mandatory provision of Section 27.004 does not make the statute jurisdictional.

3. “When construing a statute, courts must be mindful that there is a presumption against

finding a statutory provision to be jurisdictional.” 1

But, “just because a statutory requirement is

mandatory does not mean that compliance with it is jurisdictional.”2

1 TJFA, L.P. v. Tex. Comm'n on Envtl. Quality & BFI Waste Sys. of N. Am., Inc., 368 S.W.3d 727,

731 (Tex.App.—Austin 2012, pet. denied) (citing City of Desoto v. White, 288 S.W.3d 389, 394

(Tex. 2009)).

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4. The “presumption may only be overcome ‘by clear legislative intent to the contrary,’”3

and in order to determine whether a statutory requirement make the statute jurisdictional, the

Court’s goal should be to ascertain legislative intent by examining the statute’s plain language.4

Further, the Court should “consider the statute as a whole rather than its isolated provisions.”5

5. The Legislature, in enacting the TCPA, gave clear direction as to how courts are to

construe the Act. The TCPA “shall be construed liberally to effectuate its purpose and intent

fully.”6 The Legislature clearly stated that the intent of the TCPA “is to encourage and safeguard

the constitutional rights of persons to petition, speak freely, associate freely, and otherwise

participate in government to the maximum extent permitted by law and, at the same time, protect

the rights of a person to file meritorious lawsuits for demonstrable injury.”7

6. Plaintiff has made no showing that the Legislature intended to make Section 27.004 to

be jurisdictional, or that holding Section 27.004 furthers the purpose and intent of the TCPA, or

the direction to construe its provisions liberally to achieve its purpose.

7. Further, besides the plain language of the statute, the legislative history provides no

evidence that Section 27.004 was intended to provide a plaintiff a sword or means to avoid an

Anti-S.L.A.P.P. motion to dismiss from being considered on the merits. On the floor Texas

Senate, when the TCPA was being presented and debated, not one senator spoke in opposition,

2 Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999).

3 TJFA, L.P. v. Tex. Comm'n on Envtl. Quality & BFI Waste Sys. of N. Am., Inc., 368 S.W.3d 727,

732 (Tex.App.—Austin 2012, pet. denied) (citing City of Desoto v. White, 288 S.W.3d 389, 394

(Tex. 2009)).

4 City of Desoto v. White, 288 S.W.3d 389, 394 (Tex. 2009).

5 Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).

6 TEX. CIV. PRAC. & REM. CODE § 27.011(b).

7 TEX. CIV. PRAC. & REM. CODE § 27.002.

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and the bill passed unanimously. The only debate or commentary on the Senate floor was that of

Sen. Rodney Ellis, who stated:

“…Members, this is the anti-slap [sic] statute. The Texas citizen

participation about which will protect Texans' rights of speech from

punitive, meritless lawsuits. House Bill 2973 on the -- passed the House

calendar's committee and passed the House floor 142 to zero. Members, an

anti-slap, anti-strategic lawsuit against public participation legislation

protects all Texans petitioning the government on speaking out about

matters of public concern. This bill creates in Texas a way for people

who have been subjected to slap lawsuits to protect themselves from

having to give into the plaintiff who has greater resources or other

power rather than spend thousands of dollars defending themselves. Members, anti-slap statutes have been adopted in 27 other states. It's a

good bill and I appreciate the work of Chairman Duncan and again you,

Mr. President, the work of the trial lawyers, TLR, the media and everyone

coming to a consensus on this bill…”8

The bill enacting the TCPA passed the Texas House unanimously without substantive

debate. The governor signed the bill, and it became law immediately because of its unanimous

support in both legislative chambers.

8. Everything about the legislative history, and the statutory language, suggests the

purpose of the Act is to protect defendants from S.L.A.P.P. suits. Nothing indicates the

Legislature’s intent to deprive the court of jurisdiction over a TCPA motion because a hearing is

not secured in a specified amount of time.

9. When construing a statute, the Court should presume the Legislature intended a just

and reasonable result.9 As Senator Ellis pointed out, the primary purpose of the TCPA is to

protect defendants sued for unmeritorious claims by disproportionally well-equipped plaintiffs

8 Transcript of Senate debate and comments on HB 2973 by Sen. Ellis, May 18, 2011, Tex. 82nd

Leg., R.S. (available at http://www.texastribune.org/session/82R/transcripts/2011/5/18/senate/, last

visited March 1, 2013) (emphasis added, procedural and ministerial commentary omitted).

9 TEX. GOV’T CODE §311.021(3); See also Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.

2001).

http://www.texastribune.org/session/82R/transcripts/2011/5/18/senate/

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(exactly the circumstances in this case) to have meaningful redress before the Court. There is no

evidence in the legislative history that Section 27.004 was meant to create a hard deadline which

in and of itself could be used as a jurisdictional limit on the Court’s ability to consider the merits

of the motion. But, even if the Court finds both parties’ arguments to be valid, when faced with

two competing interpretations, the Court should choose the one most harmonious with the Act's

objectives,10

which should fall on the side of giving Defendant’s motion a full hearing.

10. Absent such a showing, and based on the Texas Supreme Court’s jurisprudence on

construing statutes to be jurisdictional, the Court should find it does have jurisdiction to consider

Defendant’s Anti-S.L.A.P.P. Motion to Dismiss, and hold a hearing on the merits of the motion.

B. Unlike Sections 27.005 and 27.008 of the TCPA, Section 27.004 does not provide a

consequence for non-compliance, and is therefore directory, not mandatory.

11. While Texas courts have not interpreted the word “must” as often as the word “shall”

in statutes, generally, the courts have held that both words create an obligation.11

“The word

‘must' is given a mandatory meaning when followed by a noncompliance penalty."12

12. There is no dispute that both Sections 27.004 and 27.005 of the TCPA contain the

words “must.” But, Section 27.005 specifically contains a consequence if the Court fails to rule

on a motion to dismiss. The consequence is specifically contained in Section 27.008, which

gives a defendant the right to file an interlocutory appeal if the trial court fails to rule on the

10 Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 498 (Tex. 2001).

11 Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (citing Wright v. Ector County

Indep. Sch. Dist., 867 S.W.2d 863, 868 (Tex. App.--El Paso 1993, no writ)).

12 Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (emphasis added) (citing Harris

County Appraisal Dist. v. Consolidated Capital Props. IV, 795 S.W.2d 39, 41 (Tex. App.—Amarillo

1990, writ denied).

https://advance.lexis.com/fullDocument/fulldoc/link?requestid=257c7e27-6785-6ac3-e433-4384fe8cffaa&ContentId=%2fshared%2fdocument%2fcases%2furn%3acontentItem%3a42YH-TNJ0-0039-4230-00000-00&contextFeatureId=1000516&isTab=t




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motion. Conversely, Section 27.008, nor any other section of the TCPA, provides an explicit

consequence for any failure – by any party – to meet the requirements of Section 27.004.

13. There is a difference between statutory language being ‘directory’ versus

‘mandatory.’ When determine whether the Legislature intended a statutory provision is

mandatory or directory, the Court should consider the plain meaning of the words used, as well

as the entire act, its nature and object, and the consequences that would follow from each

construction.13

14. In Alvia the Court specifically recognized the contrast between the consequence set

forth by Section 27.008 for non-compliance with Section 27.005, and the statute's specific

allowance for extensions of time [under Section 27.004].14

The TCPA provides no consequence

for non-compliance with Section 27.004, and therefore, Section 27.004 is merely directory, not

mandatory.

15. The overwhelming purpose of the TCPA is to have a defendant’s Anti-S.L.A.P.P.

motion to dismiss considered. In fact, the “consequence” in 27.008 for non-compliance with

Section 27.005 is to provide an appellate remedy so the motion can be considered and finally

ruled upon – even if the trial court doesn’t act. The purpose of the statute is in favor of

consideration of the motion. No provision of the TCPA provides for the motion never being

considered on the merits. If the Legislature intended to provide a punitive consequence for

failing to secure a hearing under Section 27.004, it would have said so. Instead, all provisions of

the TCPA, even the supposed “consequences,” are in favor of having the motion considered. If

13 Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 494 (Tex. 2001) (citing Albertson's, Inc. v. Sinclair,

984 S.W.2d 958, 961 (Tex. 1999)).

14 Avila v. Larrea, 2012 Tex. App. LEXIS 10469 at 22 (Tex. App. Dallas Dec. 18, 2012).

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this Court were to refuse to give Defendant a hearing on the merits on his Anti-S.L.A.P.P.

Motion to Dismiss, it would not reach a result contrary to the purpose of the TCPA.

III. CONCLUSION

16. In sum, a mandatory statutory provision is not jurisdictional absent a clear showing

of legislative intent to make it so. Section 27.004 provides no indication of legislative intent, in

fact other provisions of the TCPA promote liberal construction to accomplish the Act’s

objective, and there is no legislative history indicating Section 27.004 was intended to be used by

plaintiff’s to deprive courts of the ability to consider motions under the Act.

17. Further, since no provision of the TCPA provides a consequence for non-compliance

with Section 27.004, the provision is to be viewed as directory, not mandatory, and the Court

should not impose a consequence contrary to the overall purpose of the Act.

IV. PRAYER

WHEREFORE, Defendant prays the Court deny Plaintiff’s Supplemental Motion to

Proceed with Discovery, find the Court has jurisdiction to hear Plaintiff’s Anti-S.L.A.P.P.

Motion to Dismiss, and continue with the full hearing on Defendant’s motion as set for March 4,

2013, and further prays for general relief as allowed by law.

Respectfully submitted,

THE NICHOLS LAW FIRM, P.L.L.C.

____________________________________

JUSTIN P. NICHOLS

Texas Bar No.: 24081371

106 S. Saint Mary’s Street, Suite 255

San Antonio, Texas 78205

(210) 354-2300 phone

(800) 761-5782 facsimile

[email protected]

ATTORNEY FOR DEFENDANT

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CERTIFICATE OF SERVICE

I certify a true and correct copy of the foregoing instrument was served upon Plaintiff, through

her attorneys, by fax to (972) 788-2667 per TEX. R. CIV. P. 21a on March 1, 2013.

______________________________

JUSTIN P. NICHOLS

User Name: 70DDHXMDate and Time: 03/01/2013 1:09 PM ESTJob Number: 2184159

Document(1)

1. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958

Client/matter: Adelman

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CautionAs of: March 1, 2013 1:09 PM EST

Albertson’s, Inc. v. Sinclair

Supreme Court of Texas

February 4, 1999, Delivered

No. 98-0945

Reporter: 984 S.W.2d 958; 1999 Tex. LEXIS 6; 42 Tex. Sup. J. 358

ALBERTSON’S, INC., PETITIONER v.CHARLES SINCLAIR, RESPONDENT

Prior History: [**1] ON PETITION FORREVIEW FROM THE COURT OF APPEALSFOR THE SIXTH DISTRICT OF TEXAS.

Disposition: Albertson’s petition for reviewgranted and the court of appeals’ judgment af-firmed.

Core Terms

judicial review, workers’ compensation,mandatory, trial court, intervene, notice, dictates,legislative intent, mailbox rule, noncompliance,same day, settlement

Case Summary

Procedural PostureEmployer petitioned for review from a deci-sion of the Court of Appeals for the Sixth Dis-trict of Texas, which determined that work-er’s filing of petition for review with TexasWorkers’ Compensation Commission wastimely because the mailbox rule applied to Tex.Lab. Code Ann. § 410.253 filings.

OverviewAn employee filed a claim against his em-ployer with Texas Workers’ Compensation Com-mission. The commission and an AppealsPanel ruled for employer. The employee peti-tioned for judicial review under Texas LaborCode subchapter G and mailed a copy of the

petition to the commission. Employer filed amotion to dismiss the judicial review action, al-leging that because the commission did not re-ceive the petition within forty days of the Ap-peals Panel’s decision, the filing with thecommission was untimely under Tex. Lab. CodeAnn. § 410.253. The trial court dismissed thejudicial review action for want of jurisdiction.The appellate court reversed the trial court’sjudgment, and the employer appealed. The courtconcluded that § 410.253 required petitionerfor judicial review of a Appeals Panel decisionto file a copy of petition with commission onthe same day it filed a petition with the trialcourt. The mailbox rule applied to § 410.253filings in subchapter G judicial review actions.Further, compliance with § 410.253, whilemandatory, was not jurisdictional. The court af-firmed the judgment.

OutcomeThe judgment was affirmed. The court heldthat a party must file a copy of its petition for ju-dicial review with the Texas Workers’ Compen-sation Commission on the same day that theparty filed its petition in the trial court and thatthe mailbox rule applied. Further, untimely fil-ing with the commission did not deprive the trialcourt of jurisdiction.

LexisNexis® Headnotes

Civil Procedure > Preliminary Considerations > Venue > GeneralOverviewCivil Procedure > Pleading & Practice > Motion Prac-tice > General OverviewCivil Procedure > Parties > Intervention > Time Limi-tationsWorkers’ Compensation & SSDI > ... > Claims > Stat-

ute of Limitations > General OverviewWorkers’ Compensation & SSDI > Administrative Pro-ceedings > Judicial Review > General OverviewWorkers’ Compensation & SSDI > ... > Judicial Re-view > Standards of Review > General Overview

HN1 The Labor Code provides for judicial re-view of a Texas Workers’ Compensation Com-mission Appeals Panel decision. Tex. Lab. CodeAnn. §410.251. Subchapter F contains generalprovisions for judicial review. A party may seekjudicial review by filing suit not later than the40th day after the date on which the decision ofthe appeals panel was filed with the division.Tex. Lab. Code Ann. § 410.252(a). A copy of thepetition shall be simultaneously filed with thecourt and the commission and served on any op-posing party. Tex. Lab. Code Ann. § 410.253.On timely motion initiated by the executive di-rector, the commission shall be permitted to in-tervene in any judicial proceeding under thissubchapter or Subchapter G. Tex. Lab. CodeAnn. § 410.254.

Civil Procedure > Appeals > Standards of Re-view > De Novo ReviewWorkers’ Compensation & SSDI > Administrative Pro-ceedings > Judicial Review > General OverviewWorkers’ Compensation & SSDI > Benefit Determina-tions > Death Benefits

HN2 Subchapter G provides a modified trialde novo procedure that applies only to judicialreview actions involving compensability oreligibility for or the amount of income or deathbenefits. Tex. Lab. Code Ann. §10.301. Sub-chapter G also dictates that when the TexasRules of Civil Procedure conflict with the pro-cedures in subchapter G, subchapter G con-trols. Tex. Lab. Code Ann. § 410.305.

Governments > Legislation > InterpretationWorkers’ Compensation & SSDI > Administrative Pro-ceedings > Judicial Review > General OverviewWorkers’ Compensation & SSDI > ... > Judicial Re-view > Standards of Review > General Overview

HN3 In construing a statute, the court’s objec-tive is to determine and give effect to the leg-islature’s intent. The court accomplishes thatpurpose, first, by looking to the statute’splain and common meaning. In ordinary usage,″simultaneous″ means existing or occurring at

the same time. The court cannot construe ″simul-taneous″ to mean any time within the sameforty days. The plain meaning of ″simultane-ous″ and common sense dictate that the courtconstrue Tex. Lab. Code Ann. § 410.253 to re-quire a party to file its judicial review peti-tion with the Texas Workers’ CompensationCommission and with the trial court on the sameday.

Workers’ Compensation & SSDI > Administrative Pro-ceedings > Judicial Review > General OverviewWorkers’ Compensation & SSDI > ... > Judicial Re-view > Standards of Review > General OverviewWorkers’ Compensation & SSDI > Benefit Determina-tions > Death Benefits

HN4 Although subchapter G does not ex-pressly incorporate the Rules of Civil Proce-dure, the legislature specified in section 410.305that when subchapter G conflicts with theTexas Rules of Civil Procedure, subchapter Gcontrols. Tex. Lab. Code Ann. § 410.305. Sec-tion 410.305 evinces the legislature’s intentthat the Rules of Civil Procedure control un-less they conflict with subchapter G. WhetherTexas Rule of Civil Procedure 5 conflicts withCommission Rule 102.7 is irrelevant. Be-cause Rule 5 does not conflict with subchapterG, it applies to subchapter G judicial reviewactions.

Governments > Legislation > InterpretationWorkers’ Compensation & SSDI > Administrative Pro-ceedings > Judicial Review > General Overview

HN5 The court generally construe the word″shall″ as mandatory, unless legislative intentsuggests otherwise. In determining whether thelegislature intended a provision to be manda-tory or directory, the court considers the plainmeaning of the words used, as well as the en-tire act, its nature and object, and the conse-quences that would follow from each con-struction. Generally, courts construe a statutoryprovision as mandatory when the power orduty to which it relates is for the public good.

Civil Procedure > ... > Jurisdiction > JurisdictionalSources > Statutory SourcesGovernments > Legislation > InterpretationWorkers’ Compensation & SSDI > Administrative Pro-

984 S.W.2d 958, *958; 1999 Tex. LEXIS 6, **1

ceedings > Evidence > WitnessesWorkers’ Compensation & SSDI > Administrative Pro-ceedings > Judicial Review > General OverviewWorkers’ Compensation & SSDI > Benefit Determina-tions > Dependents

HN6 Just because a statutory requirement ismandatory does not mean that compliance withit is jurisdictional. When the statute is silentabout consequences of noncompliance, the courtlooks to the statute’s purpose in determiningthe proper consequence of noncompliance. Fur-ther, the court liberally construes workers’compensation legislation to carry out its evi-dent purpose of compensating injured workersand their dependents.

Civil Procedure > Pleading & Practice > Motion Prac-tice > General OverviewCivil Procedure > Pleading & Practice > Motion Prac-tice > Time LimitationsCivil Procedure > Parties > Intervention > GeneralOverviewCivil Procedure > Parties > Intervention > Motions toInterveneCivil Procedure > Parties > Intervention > Interven-tion of RightCivil Procedure > Parties > Intervention > Time Limi-tationsWorkers’ Compensation & SSDI > Administrative Pro-ceedings > Judicial Review > General Overview

HN7 The plain meaning of ″shall″ supports amandatory construction of section 410.253’s si-multaneous filing requirement.

Civil Procedure > ... > Pleadings > Com-plaints > Prelitigation NoticesGovernments > Legislation > InterpretationWorkers’ Compensation & SSDI > Administrative Pro-ceedings > Judicial Review > General OverviewWorkers’ Compensation & SSDI > ... > Judicial Re-view > Standards of Review > General Overview

HN8 The liberal construction the court mustgive workers’ compensation laws precludes a ju-risdictional interpretation. The purpose behind

Tex. Lab. Code Ann. § 410.253 does not re-quire dismissing the judicial review action forfailure to timely file with the Texas Workers’Compensation Commission.

Workers’ Compensation & SSDI > Administrative Pro-ceedings > Judicial Review > General OverviewWorkers’ Compensation & SSDI > ... > Judicial Re-view > Standards of Review > General Overview

HN9 Tex. Lab. Code Ann. § 410.253 requires apetitioner for judicial review of a Texas Work-ers’ Compensation Commission Appeals Paneldecision to file a copy of the petition with theTexas Workers’ Compensation Commission onthe same day it files the petition with the trialcourt. The mailbox rule applies to § 410.253 fil-ings in subchapter G judicial review actions.Compliance with § 410.253, while mandatory,is not jurisdictional.

Opinion

[*959] Per Curiam

We consider three issues in this petition for re-view: (1) when is a party, who seeks judicialreview of a Texas Workers’ Compensation Com-mission Appeals Panel decision, required tofile a copy of its petition with the Commissionunder the Texas Labor Code section 410.253;(2) whether ″the mailbox rule″

1 applies to sec-tion 410.253 filings in judicial review actionsunder Texas Labor Code chapter 410, subchap-ter G; 2 and (3) whether an untimely section410.253 filing with the Commission deprives thetrial court of jurisdiction over the judicial re-view action. We hold that section 410.253 re-quires a party to file a copy of its petition for ju-dicial review with the Commission on thesame day that the party files its petition in thetrial court and that the mailbox rule applies tosection 410.253 filings in subchapter G judi-

1 See Texas Rule of Civil Procedure 5, which provides in part:

If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed andstamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than tendays tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Ser-vice shall be prima facie evidence of the date of mailing.

2 SeeTEX. LAB. CODE § 410.301-.308.

984 S.W.2d 958, *958; 1999 Tex. LEXIS 6, **1

cial review actions. SeeTEX. R. CIV. P. 5. Wealso hold that untimely filing with the Commis-sion under section 410.253 does not deprivethe trial court of jurisdiction. [**2] Accord-ingly, we affirm the court of appeals’ judgmentremanding the case to the trial court for fur-ther proceedings.

Charles Sinclair filed a compensation claimagainst Albertson’s, Inc. with the Texas Work-ers’ Compensation Commission for an al-leged work-related injury. Albertson’s con-tested the compensability of the injury. ACommission hearing officer and an AppealsPanel ruled for Albertson’s. The fortieth day af-ter the Appeals Panel’s decision was a Sun-day. [**3] The next day, Sinclair filed a peti-tion with the trial court for judicial reviewunder Texas Labor Code subchapter G andmailed a copy of the petition to the Commis-sion. The Commission received the petition twodays later. Albertson’s moved to dismiss the ju-dicial review action, alleging that becausethe Commission did not receive Sinclair’s peti-tion within forty days of the Appeals Panel’sdecision, Sinclair’s filing with the Commissionwas untimely under section 410.253. SeeTEX. LAB. CODE§ 410.253. The trial court dis-missed the judicial review action for want of ju-risdiction. [*960] The court of appeals re-versed the trial court’s judgment, concludingthat Sinclair’s filing with the Commission wastimely because the mailbox rule applies to sec-tion 410.253 filings. 975 S.W.2d 662. The courtof appeals also held that section 410.253’stimely filing requirement was directory, notmandatory or jurisdictional.

HN1 The Labor Code provides for judicial re-view of an Appeals Panel decision. SeeTEX.LAB. CODE § 410.251. Subchapter F containsgeneral provisions for judicial review, includ-ing:

Time for Filing Petition; Venue

A party may seek judicial review by filing suitnot [**4] later than the 40th day after thedate on which the decision of the appeals panelwas filed with the division.

TEX. LAB. CODE § 410.252(a).

Service

A copy of the petition shall be simultaneouslyfiled with the court and the commission andserved on any opposing party.

TEX. LAB. CODE § 410.253.

Commission Intervention

On timely motion initiated by the executive di-rector, the commission shall be permitted to in-tervene in any judicial proceeding under thissubchapter or Subchapter G.

TEX. LAB. CODE § 410.254.

In addition, HN2 subchapter G provides a modi-fied trial de novo procedure that applies onlyto judicial review actions involving ″compens-ability or eligibility for or the amount of in-come or death benefits.″ TEX. LAB. CODE §410.301; see also Lumbermens Mut. Cas. Co. v.Manasco, 971 S.W.2d 60, 61 (Tex. 1998);Texas Workers’ Compensation Comm’n v. Gar-cia, 893 S.W.2d 504, 515 (Tex. 1995). Sub-chapter G also dictates that when the TexasRules of Civil Procedure conflict with the pro-cedures in subchapter G, subchapter G con-trols. SeeTEX. LAB. CODE § 410.305.

Albertson’s asserts that section 410.253 re-quires a petitioner for judicial review to [**5]furnish the Commission a copy of the peti-tion for judicial review any time within section410.252’s forty-day time period for filing thepetition. SeeTEX. LAB. CODE § 410.252-.253.We disagree. HN3 In construing a statute,our objective is to determine and give effect tothe Legislature’s intent. See Liberty Mut. Ins.Co. v. Garrison Contractors, Inc., 966 S.W.2d482, 484 (Tex. 1998). We accomplish that pur-pose, first, by looking to the statute’s plain andcommon meaning. See Garrison, 966 S.W.2dat 484. In ordinary usage, ″simultaneous″ means″existing or occurring at the same time.″ SeeWebster’s Third New International Dictionary(1969). We cannot construe ″simultaneous″ tomean any time within the same forty days.

984 S.W.2d 958, *959; 1999 Tex. LEXIS 6, **1

The plain meaning of ″simultaneous″ and com-mon sense dictate that we construe section410.253 to require a party to file its judicial re-view petition with the Commission and withthe trial court on the same day.

Albertson’s also argues that Commission Rule102.7 precludes applying ″the mailbox rule″ toCommission filings under section 410.253.Again, we disagree. Commission Rule 102.7dictates that documents are timely filed only ifthe Commission receives [**6] them beforeor during business hours on the last permis-sible day to file. See28 TEX. ADMIN. CODE §102.7. However, Rule 102.7 applies ″unlessotherwise specified in the Act or rules.″ 28 TEX.ADMIN. CODE § 102.7. The Legislature speci-fied in the Workers’ Compensation Act thatjudicial review actions involving ″compensabil-ity or eligibility for or the amount of incomeor death benefits ″shall be conducted as pro-vided by [subchapter G].″ TEX. LAB. CODE §410.301. HN4 Although subchapter G doesnot expressly incorporate the Rules of Civil Pro-cedure, the Legislature specified in section410.305 that when subchapter G conflicts withthe Texas Rules of Civil Procedure, subchap-ter G controls. SeeTEX. LAB. CODE § 410.305.Section 410.305 evinces the Legislature’s in-tent that the Rules of Civil Procedure control un-less they conflict with subchapter G. WhetherTexas Rule of Civil Procedure 5 conflicts withCommission Rule 102.7 is irrelevant. Be-cause [*961] Rule 5 does not conflict with sub-chapter G, it applies to subchapter G judicial re-view actions. Sinclair timely filed his petitionwith the Commission by sending it to the Com-mission by first-class United States mail onthe day it was [**7] due.

Lastly, Albertson’s argues that section410.253’s requirement is mandatory and thatfailure to comply deprives the trial court of ju-risdiction over the judicial review action. Thecourt of appeals held that section 410.253 wasdirectory. We conclude that simultaneously fil-ing with the trial court and the Commission ismandatory but not jurisdictional.

HN5 We generally construe the word ″shall″as mandatory, unless legislative intent suggests

otherwise. See Schepps v. Presbyterian Hosp.of Dallas, 652 S.W.2d 934, 936 (Tex. 1983). Indetermining whether the Legislature intendeda provision to be mandatory or directory, weconsider the plain meaning of the wordsused, as well as the entire act, its nature and ob-ject, and the consequences that would followfrom each construction. See Schepps, 652S.W.2d at 936 (citing Chisholm v. Bewley Mills,155 Tex. 400, 287 S.W.2d 943, 945 (Tex.1956). Generally, courts construe a statutory pro-vision as mandatory when the power or dutyto which it relates is for the public good. SeeState v. City of Greenville, 726 S.W.2d 162, 169(Tex. App.--Dallas 1986, writ ref’d n.r.e.).HN6 Further, just because a statutory require-ment is mandatory does not mean [**8] thatcompliance with it is jurisdictional. See, e.g.,Hines v. Hash, 843 S.W.2d 464, 467 (Tex. 1992).When the statute is silent about consequencesof noncompliance, we look to the statute’s pur-pose in determining the proper consequenceof noncompliance. See Hines, 843 S.W.2d at468; Schepps, 652 S.W.2d at 938. Further, weliberally construe workers’ compensation leg-islation to carry out its evident purpose of com-pensating injured workers and their depen-dents. See Lujan v. Houston Gen. Ins. Co., 756S.W.2d 295, 297 (Tex. 1988); Ward v. Char-ter Oak Fire Ins. Co., 579 S.W.2d 909, 910 (Tex.1979).

HN7 The plain meaning of ″shall″ supports amandatory construction of section 410.253’s si-multaneous filing requirement. Moreover, sec-tion 410.253’s duty to simultaneously serve theCommission relates to the public good. Sec-tion 410.254 gives the Commission a right to in-tervene upon a timely motion in a suit seek-ing judicial review of a Commission decision.SeeTEX. LAB. CODE § 410.254. Section410.253’s obvious purpose is to enable the Com-mission to exercise this right. SeeTEX. LAB.CODE § 410.254; see also SENATE COMM.OF ECONOMIC DEVELOPMENT, BILLANALYSIS, [**9] Tex. H.B. 3137, 75th Leg.,R.S.(1997)(stating that the purpose of a simi-lar notice provision, Texas Labor Code section410.258, is to ensure that the Commissionhas notice and an opportunity to intervene in a

984 S.W.2d 958, *960; 1999 Tex. LEXIS 6, **5

Justin P.Nichols

Highlight

Justin P.Nichols

Highlight

workers’ compensation lawsuit to explain whya judgment or settlement should not be ap-proved by a court). Commission intervention isdesirable because it enables the Commissionto offer consistent substantive interpretation ofworkers’ compensation laws. See Joint Se-lect Committee on Workers’ Compensation In-surance, A Report to the 71st Legislature 4(1988). The Commission, as amicus curiae, ar-gues that intervention is often necessary to op-pose the parties’ efforts to circumvent statutoryprovisions and to protect the Commission’sSubsequent Injury Fund. Again, common sensedictates that, to evaluate whether interventionin a judicial review action is necessary and, ifnecessary, to timely intervene in the action,the Commission needs prompt notice that a law-suit has been filed. Therefore, we hold that sec-tion 410.253’s simultaneous filing require-ment is mandatory.

Nevertheless, HN8 the liberal construction wemust give workers’ compensation laws pre-cludes a jurisdictional [**10] interpretation.See Lujan, 756 S.W.2d at 297; Ward, 579 S.W.2dat 910. The purpose behind section 410.253does not require dismissing the judicial reviewaction for failure to timely file with the Com-mission. Accord Hines, 843 S.W.2d at 468-69(noting that it is not necessary to the purposeof the Deceptive Trade Practices Act’s presuitnotice provision to [*962] dismiss the plain-tiff’s action if notice is not timely provided);Schepps, 652 S.W.2d at 938 (noting that it isnot necessary to the purpose of the Medical Li-ability and Insurance Improvement Act’s pre-suit notice provision to dismiss plaintiff’s ac-tion if notice is not timely provided). Section410.254 gives the Commission a statutory rightto intervene. SeeTEX. LAB. CODE § 410.254.If the Commission receives late notice and re-quires additional time to intervene, the trial

court can abate the judicial review action as nec-essary.

Moreover, that section 410.253 does not dic-tate the consequence of noncompliance is sig-nificant when considering the entire statute. Sec-tion 410.258 requires the petitioner in ajudicial review proceeding to provide the Com-mission a proposed judgment or settlementnot later than the [**11] thirtieth day beforethe court is scheduled to enter the judgment orapprove the settlement. SeeTEX. LAB. CODE§ 410.258(a). Subsection 410.258(b) providesthe Commission yet another opportunity to in-tervene, up to the thirtieth day after receiving theproposed judgment or settlement. SeeTEX.LAB. CODE § 410.253(b). Importantly, subsec-tion 410.258(f) provides that a judgment en-tered or settlement approved without comply-ing with section 410.258’s requirements is void.SeeTEX. LAB. CODE § 410.258(f). That theLegislature could have but did not similarly pro-vide a consequence for noncompliance withsection 410.253 suggests that it chose not to doso. See Chisolm, 287 S.W.2d at 945.

Therefore, we hold that HN9 section 410.253 re-quires a petitioner for judicial review of aTexas Workers’ Compensation Commission Ap-peals Panel decision to file a copy of the peti-tion with the Commission on the same day itfiles the petition with the trial court. We holdthat the mailbox rule applies to section 410.253filings in subchapter G judicial review ac-tions. We also hold that compliance with sec-tion 410.253, while mandatory, is not jurisdic-tional. Accordingly, without hearing oral[**12] argument, we grant Albertson’s pe-

tition for review and affirm the court of ap-peals’ judgment.SeeTEX. R. APP. P. 59.1

OPINION DELIVERED: February 4, 1999

984 S.W.2d 958, *961; 1999 Tex. LEXIS 6, **9


Document(1)

1. City of Desoto v. White, 288 S.W.3d 389



PositiveAs of: March 1, 2013 1:24 PM EST

City of Desoto v. White


December 11, 2008, Argued; June 19, 2009, Opinion Delivered

NO. 07-1031

Reporter: 288 S.W.3d 389; 2009 Tex. LEXIS 395; 52 Tex. Sup. J. 893; 29 I.E.R. Cas. (BNA) 555

CITY OF DESOTO, TEXAS, PETITIONER, v.JUSTIN WHITE, RESPONDENT

Prior History: [**1] ON PETITION FORREVIEW FROM THE COURT OF APPEALSFOR THE FIFTH DISTRICT OF TEXAS.City of DeSoto v. White, 232 S.W.3d 379, 2007Tex. App. LEXIS 6886 (Tex. App. Dallas,2007)

Core Terms

hearing examiner, election, notice, police officer,abatement, suspension, requirement of notice,suspended, district court, firefighter, mandatory,deadline, civil service commission, civil servicerule, invoke, notice provision, civil service,disciplinary action, pre-suit, waived, writtenstatement, appellate rights, tribunal, legislativeintent, department head, noncompliance, notify,prerequisite, omission, collusion

Case Summary

Procedural PostureRespondent police officer sued petitioner city,arguing that a hearing examiner, who upheld theofficer’s suspension, lacked jurisdiction tohear his appeal. The trial court agreed andgranted the officer summary judgment and feesand ordered his reinstatement. The Court ofAppeals for the Fifth District of Texas af-firmed, holding that the notice requirement un-der Tex. Loc. Gov’t Code Ann. § 143.057(a)was jurisdictional. The city sought review.

OverviewAfter being suspended, the city failed to in-form the officer of an appeal limitation underTex. Loc. Gov’t Code Ann. § 143.057(a). The of-ficer sued and the trial court found that the ex-aminer lacked jurisdiction to hear the offi-cer’s appeal. The appellate court affirmed,finding that the notice requirement was jurisdic-tional. The court disagreed and reversed. Thecity’s failure to provide the mandatory notice un-der § 143.057(a) did not deprive the hearing ex-aminer of jurisdiction to hear a police offi-cer’s appeal. The officer declined the chance tochange his election. Generally, the courtwould hold that he waived any complaint be-cause he had full knowledge of the appeal limi-tation under § 143.057(j), but the court recog-nized that the officer could have been relying oncase law’s strict enforcement of the 10-dayelection deadline in Tex. Loc. Gov’t Code Ann.§ 143.010(a). Thus, the officer was to begiven a chance to make a new election, giventhe same policy reasons behind Tex. Civ. Prac. &Rem. Code Ann. § 16.064. The court re-manded the case to the trial court with instruc-tions to remand to the hearing examiner sothe officer had an opportunity to make an appel-late election.

OutcomeThe court reversed the appellate court’s judg-ment. The court remanded the case to the trialcourt with instructions to remand to the hear-ing examiner so the officer had an opportunityto make an appellate election.


Administrative Law > Agency Adjudication > Reviewof Initial DecisionsCivil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewGovernments > Local Governments > Employees &Officials

HN1 A police officer who has been suspendedfrom duty has a right to appeal that action toeither a civil service commission or to an inde-pendent, third-party hearing examiner. If theofficer appeals to a hearing examiner, his abil-ity to seek further review in a district courtis severely limited. The pre-appeal notice provi-sion is not jurisdictional.

Administrative Law > Judicial Review > Reviewabil-ity > General Overview

HN2 Tex. Loc. Gov’t Code Ann. § 143.057(j)permits judicial review of a hearing examinerdecision on grounds that the examiner waswithout jurisdiction.


HN3 Notice of the appeal limitation as re-quired by Tex. Loc. Gov’t Code Ann. §143.057(a) is not jurisdictional.

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsAdministrative Law > Judicial Review > Reviewabil-ity > General OverviewAdministrative Law > Judicial Review > Standards ofReview > De Novo Standard of ReviewGovernments > Local Governments > Employees & Of-ficials

HN4 Tex. Loc. Gov’t Code Ann. ch. 143,known as the Fire Fighter and Police OfficerCivil Service Act, outlines the disciplinary pro-cess by which a municipality may suspend anofficer and how that officer may appeal the sus-pension. Tex. Loc. Gov’t Code Ann. §§ 143.051-.057. A police department may suspend an of-ficer for a violation of civil service rules. Tex.Loc. Gov’t Code Ann. § 143.052(b). The offi-cer may then appeal the suspension to either the

Fire Fighters’ and Police Officers’ Civil Ser-vice Commission, or an independent third-party hearing examiner. Tex. Loc. Gov’t CodeAnn. §§ 143.010, 143.053, 143.057(b). If theofficer appeals to the Commission, the officermay seek review of the Commission’s decisionwith a district court, which conducts a denovo review. Tex. Loc. Gov’t Code Ann. §143.015(b). However, if the officer appeals toa hearing examiner, the officer waives subse-quent review by a district court, Tex. Loc.Gov’t Code Ann. § 143.057(c), except on thegrounds that the hearing examiner was withoutjurisdiction or exceeded its jurisdiction orthat the order was procured by fraud, collu-sion, or other unlawful means. Tex. Loc. Gov’tCode Ann. § 143.057(j).


HN5 The Local Government Code distin-guishes between municipalities with a popula-tion of less than 1.5 million, and those with apopulation of 1.5 million or more. Whilethere are some differences between the twoschemes, the appellate process provisions aresimilar. Thus, the court’s holding with regard tothe non-jurisdictional nature of the notice pro-vision applies with equal force under eachscheme.

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsGovernments > Local Governments > Employees & Of-ficials

HN6 Tex. Loc. Gov’t Code Ann. § 143.057(j)uses the term ″arbitration panel,″ rather than″hearing examiner.″ Tex. Loc. Gov’t CodeAnn. § 143.057(c). However, the court has notedthat ″arbitration panel″ is synonymous with″hearing examiner″ in this context.

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsAdministrative Law > Judicial Review > Reviewabil-ity > General OverviewGovernments > Local Governments > Employees & Of-

288 S.W.3d 389, *389; 2009 Tex. LEXIS 395, **1

ficials

HN7 The Local Government Code specifieshow the officer makes an appellate election.Within 120 hours of the suspension, the depart-ment head shall file a written statement withthe commission giving the reasons for the sus-pension, and also immediately deliver a copyof the statement to the suspended officer. Tex.Loc. Gov’t Code Ann. § 143.052(c). The state-ment, also referred to as a letter of disciplinaryaction, must point out each civil service rule al-leged to have been violated and must describethe alleged acts of the person that the depart-ment head contends are in violation of the civilservice rules. Tex. Loc. Gov’t Code Ann. §143.052(e). It must inform the suspended offi-cer that if he chooses to appeal, he must filea written appeal within 10 days of receiving theletter, § 143.052(d), and that he may elect to ap-peal to an independent third party hearing ex-aminer instead of to the commission. Tex. Loc.Gov’t Code Ann. § 143.057(a). The lettermust also inform the officer that if he elects toappeal to a hearing examiner, he waives allrights to appeal to a district court, § 143.057(a),except on the grounds that the arbitrationpanel was without jurisdiction or exceeded its ju-risdiction or that the order was procured byfraud, collusion, or other unlawful means. Tex.Loc. Gov’t Code Ann. § 143.057(j).

Governments > Local Governments > Employees & Of-ficials

HN8 The Texas Local Government Code re-fers to a ″written statement″ and a ″letter of dis-ciplinary action.″ These terms appear to referto the same document.


HN9 An officer working for a municipalitywith a population of 1.5 million or more has 15days to file an appeal. Tex. Loc. Gov’t CodeAnn. § 143.1015(a).

Civil Procedure > ... > Subject Matter Jurisdic-

tion > Jurisdiction Over Actions > General OverviewCivil Procedure > Judgments > Relief From Judg-ments > General OverviewGovernments > Legislation > Interpretation

HN10 The failure of a jurisdictional require-ment deprives the court of the power to act(other than to determine that it has no jurisdic-tion), and ever to have acted, as a matter oflaw. If the requirement is not jurisdictional, how-ever, the tribunal may hear the case, althoughother consequences may flow from a party’s fail-ure to comply with the requirement. The fail-ure of a non-jurisdictional requirement man-dated by statute may result in the loss of aclaim, but that failure must be timely assertedand compliance can be waived. Deeming a pro-vision jurisdictional opens the way to makingjudgments vulnerable to delayed attack for a va-riety of irregularities that perhaps better oughtto be sealed in a judgment. The modern direc-tion of policy is to reduce the vulnerability offinal judgments to attack on the ground that thetribunal lacked subject matter jurisdiction. Be-cause of these consequences, the court hasbeen reluctant to conclude that a provision is ju-risdictional, absent clear legislative intent tothat effect. Although the Legislature subse-quently provided that the notice requirement atissue in case law was jurisdictional, thecourt’s reasoning with regard to statutory analy-sis of alleged jurisdictional provisions re-mains valid.

Administrative Law > Agency Adjudication > Presid-ing Officers > General OverviewAdministrative Law > Separation of Pow-ers > JurisdictionCivil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewCivil Procedure > Judgments > Relief From Judg-ments > General OverviewGovernments > Legislation > Interpretation

HN11 The court has adopted an approach to ju-risdictional questions designed to strengthen fi-nality and reduce the possibility of delayed at-tacks on judgments, regardless of whether theclaim was anchored in common law or wasa specially-created statutory action. The courtrecognizes that a hearing examiner is a tribunalof very limited jurisdiction, and that it exer-

288 S.W.3d 389, *389; 2009 Tex. LEXIS 395, **1

cises special functions as dictated by statute.Tex. Loc. Gov’t Code Ann. § 143.057. But eventhough the examiner hears a limited type ofcase, consistent with case law, the court’s fo-cus is to avoid a result that leaves the deci-sions and judgments of the hearing examinerin limbo and subject to future attack, unless thatwas the Legislature’s clear intent.

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsAdministrative Law > Judicial Review > Reviewabil-ity > General OverviewCivil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewEvidence > Inferences & Presumptions > Presump-tionsGovernments > Local Governments > Employees & Of-ficials

HN12 The court is not convinced that a de-layed attack on an administrative judgment isan illusory concern. There remain courts and ad-ministrative tribunals staffed by judges un-trained in law or whose jurisdiction is so nar-row as to be nearly ministerial. The opportunityto challenge subject matter jurisdiction insuch a forum may therefore be inadequate.When this is so, a challenge to subject matter ju-risdiction may properly be permitted throughsubsequent attack on the judgment. Consistentwith case law, then, the court begins with thepresumption that the Legislature did not in-tend to make the notice under Tex. Loc. Gov’tCode Ann. § 143.057(a) jurisdictional; a pre-sumption overcome only by clear legislativeintent to the contrary.

Civil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewCivil Procedure > Appeals > Standards of Re-view > De Novo ReviewGovernments > Legislation > Interpretation

HN13 To determine whether a statutory require-ment is jurisdictional, the court applies statu-tory interpretation principles. As with any statu-tory provision, the court’s goal is to ascertainlegislative intent by examining the statute’s plainlanguage. The appellate court reviews thisstatutory interpretation question de novo. Sincethe Legislature is bound to know the conse-quences of making a requirement jurisdic-

tional, one must ask, in trying to determine leg-islative intent, whether the Legislatureintended those consequences.

Civil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewGovernments > Legislation > Interpretation

HN14 The court considers a number of factorsin determining whether the Legislature in-tended that a provision be jurisdictional. But,as with any statute, the court begins with thetext.

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsAdministrative Law > Judicial Review > Reviewabil-ity > General OverviewGovernments > Local Governments > Employees & Of-ficials

HN15 See Tex. Loc. Gov’t Code Ann. §143.057(a).

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsAdministrative Law > Judicial Review > Reviewabil-ity > General OverviewGovernments > Local Governments > Employees & Of-ficials

HN16 See Tex. Loc. Gov’t Code Ann. §143.057(j).

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsAdministrative Law > Judicial Review > Reviewabil-ity > General OverviewGovernments > Legislation > InterpretationGovernments > Local Governments > Employees & Of-ficials

HN17 Tex. Loc. Gov’t Code Ann. § 143.057(a)clearly requires that the letter notify the offi-cer of the appeal limitation. It provides that theletter must inform the officer of the limita-tion. Tex. Loc. Gov’t Code Ann. § 143.057(a).The Code Construction Act explains that ″must″creates or recognizes a condition precedent,Tex. Gov’t Code Ann. § 311.016(3), and the courthas recognized that ″must″ generally meansmandatory. The rest of the Texas Local Govern-ment Code and its apparent objective also in-dicate this provision is mandatory. To deter-

288 S.W.3d 389, *389; 2009 Tex. LEXIS 395, **1

mine whether the Legislature intended aprovision to be mandatory or directory, thecourt considers the plain meaning of the wordsused, as well as the entire act, its nature and ob-ject, and the consequences that would followfrom each construction. The Code establishestwo alternative means for officers to appeal: tothe commission or to the hearing examiner.Tex. Loc. Gov’t Code Ann. §§ 143.053,.057.These two avenues of appeal, however, divergeon the right to further judicial review. If the of-ficer does not know of these limitations, then theofficer is unable to properly assess which ap-peal route to take. This notice protects the offi-cer’s appellate rights. Thus, the court holdsthat the notice provision under § 143.057(a) ismandatory.

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsAdministrative Law > Judicial Review > Reviewabil-ity > General OverviewCivil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewGovernments > Local Governments > Employees &Officials

HN18 Just because a statutory requirement ismandatory does not mean that compliance withit is jurisdictional. The Texas Local Govern-ment Code does not contain any explicit lan-guage indicating that this notice of Tex. Loc.Gov’t Code Ann. § 143.057(a) requirement isjurisdictional.

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsCivil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewGovernments > Legislation > InterpretationGovernments > Local Governments > Claims By &AgainstGovernments > Local Governments > Employees & Of-ficials

HN19 Tex. Gov’t Code Ann. § 311.034 doesnot apply to the construction of all statutes. Sec-tion 311.034 specifically addresses waivers ofsovereign immunity, an issue not implicatedhere. The statute says: In order to preservethe Legislature’s interest in managing state fis-cal matters through the appropriations pro-cess, a statute shall not be construed as a waiver

of sovereign immunity unless the waiver is ef-fected by clear and unambiguous language.Also, the notice requirement in Tex. Loc. Gov’tCode Ann. § 143.057(a) is not a statutory pre-requisite to suit. The statute requires notice, butit does not specifically mandate it as a prereq-uisite to suit or appeal. Thus, the text of thestatute does not indicate that the Legislature in-tended the provision to be jurisdictional.

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsCivil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewGovernments > Legislation > InterpretationGovernments > Local Governments > Employees & Of-ficials

HN20 The court has also looked for the pres-ence or absence of specific consequences fornoncompliance in determining whether a pro-vision is jurisdictional. Here, Tex. Loc. Gov’tCode Ann. § 143.057(a) does not provide aspecific consequence for noncompliance. As acomparison, Tex. Loc. Gov’t Code Ann. §143.052(e) provides that the letter of disciplin-ary action provided to the officer must pointout each civil service rule alleged to have beenviolated and must describe the alleged acts.Tex. Loc. Gov’t Code Ann. § 143.052(e). Sec-tion 143.052(f) provides the remedy: If the de-partment head does not specifically point outin the written statement the act or acts of the po-lice officer that allegedly violated the civil ser-vice rules, the commission shall promptly re-instate the person. Tex. Loc. Gov’t Code Ann. §143.052(f). When the Legislature includes aright or remedy in one part of a code but omitsit in another, that may be precisely what theLegislature intended, and the court must honorthat difference. So, the court must assumethe Legislature did not intend that a dismissalbe the consequence for noncompliance.

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsCivil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewGovernments > Legislation > InterpretationGovernments > Local Governments > Employees & Of-ficials

HN21 The court looks to the consequences

288 S.W.3d 389, *389; 2009 Tex. LEXIS 395, **1

that result from each possible interpretation.One possible interpretation is that Tex. Loc.Gov’t Code Ann. § 143.057(a)’s notice require-ment is jurisdictional. Reinstating an officerwithout an adjudication of the very serious alle-gations against him is troubling, given the vi-tal role of police officers and fire fighters in so-ciety, and the need for continued public trustin the exercise of their duties. Under Tex. Gov’tCode Ann. § 311.021(5), in enacting a statute,it is presumed that public interest is favored overany private interest. This cannot be the resultthe Legislature intended, especially where an in-terpretation which concludes that the provi-sion is not jurisdictional would still protect theofficer’s appellate rights.

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsAdministrative Law > Separation of Pow-ers > JurisdictionCivil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewGovernments > Local Governments > Employees &Officials

HN22 The hallmark of a jurisdictional provi-sion is that it seeks to assure the appropriatebody adjudicates the dispute. Under the CivilService Code, only a police officer or fire fightermay invoke the appeals process. Tex. Gov’tCode Ann. §§ 143.010(a), 143.057(a). Thus,when it comes to invoking the jurisdiction of thecommission or hearing examiner, the focusmust always be on the officer’s actions. A pre-suit notice requirement is not jurisdictional.

Civil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewEvidence > Inferences & Presumptions > Presump-tionsGovernments > Courts > Judicial Precedent

HN23 Each of certain cases, including City ofTemple Firemen’s and Policemen’s Civil Ser-vice Commission v. Bender, were issued prior toDubai Petroleum Co. v. Kazi, where the courtextended the presumption against jurisdictionalfindings from common-law claims to statu-tory actions. The court notes this, not to call intoquestion Bender’s continuing applicability,but rather, to emphasize the proper focus in thisjurisdictional inquiry.

Governments > Legislation > Interpretation

HN24 When the statute is silent as to the con-sequences for noncompliance, the courtlooks to the statute’s purpose in determiningthe proper remedy.


HN25 See Tex. Loc. Gov’t Code Ann. §143.001(a).


HN26 Dismissal of the case and the chargesagainst the officer cannot be the remedy for fail-ure to comply with Tex. Loc. Gov’t CodeAnn. § 143.057(a). The purpose of Tex. Loc.Gov’t Code Ann. § 143.001(a) seeking ″effi-cient″ and ″capable″ personnel is not served bydismissing the case and permitting potentiallyunfit officers to return to the force without a de-termination of the substance of the complaintagainst them. At the same time, the possibility ofimposing no consequences is troubling, giventhat the required notice is intended to inform theofficer of important appellate rights. The pro-vision is certainly an important one: The Legis-lature’s apparent purpose in enacting the pro-vision was to ensure that fire fighters and policeofficers are fully aware of a significant conse-quence that will result if they elect to have an in-dependent hearing examiner, rather than thecommission, hear their appeal. Thus, the courtbelieves the statute requires some remedy.

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsCivil Procedure > ... > Responses > Defenses, Demur-rers & Objections > Waiver & Preservation of De-fensesGovernments > Local Governments > Employees & Of-ficials

HN27 An abatement is generally appropriateto cure pre-suit notice deficiencies. Abatement,for a reasonable period of time, rather than dis-missal, is appropriate remedy until parties meetthe pre-suit requirement that they are ″unableto agree″ on the amount of damages in a con-

288 S.W.3d 389, *389; 2009 Tex. LEXIS 395, **1

demnation proceeding. The court recognizesthe statute here, Tex. Loc. Gov’t Code Ann. §143.057(a), is unique. Normally, the party thateventually files suit is required to provide pre-suit notice. Under the Civil Service Act, how-ever, the City provides notice, and then the of-ficer appeals. The court nonetheless concludesthat an abatement is the appropriate remedybecause it cures the notice omission: it allowsthe City to notify an officer of his appellaterights without dismissing a case against a po-tentially unfit officer, and it allows the officer anopportunity to make an appellate electionwith full knowledge of the consequences ofchoosing each path. The court disagrees that theabatement remedy, or a dismissal allowing anofficer to make a new election after a city pro-vides the appropriate notice, is precluded bycase law. An abatement is appropriate under theCode, as well as under the case law analy-ses.


HN28 In any Civil Service hearing hereunder,the department head is hereby restricted to hisoriginal written statement and charges whichshall not be amended. Section 16 of the Fire-man’s and Policeman’s Civil Service Act. Thecourt has reasoned that a second set ofcharges were equivalent to an amendment tothe original written statement, which was pro-hibited under the Texas Local GovernmentCode. The case laid out a strict rule againstamended letters of disciplinary action, and rec-ognized the strict time constraints preventingthe use of replacement letters.


HN29 Former § 16 of the Civil Service Act isnow codified in substantially similar form atTex. Loc. Gov’t Code Ann. § 143.053(c). The 120-hour rule is now codified at § 143.052(c).Tex. Loc. Gov’t Code Ann. § 143.052(c)


HN30 See Tex. Loc. Gov’t Code Ann. §

143.052(c).


HN31 The 180-day rule is codified at Tex.Loc. Gov’t Code Ann. § 143.052(h). Tex. Loc.Gov’t Code Ann. § 143.052(h).


HN32 See Tex. Loc. Gov’t Code Ann. §143.052(h).

Administrative Law > Agency Adjudication > Reviewof Initial DecisionsCivil Procedure > ... > Responses > Defenses, Demur-rers & Objections > Waiver & Preservation of De-fensesGovernments > Local Governments > Employees & Of-ficials

HN33 City of Temple Firemen’s and Police-men’s Civil Service Commission v. Bender setout its own strict rules. The ten-day deadlineto elect whether to appeal to the commission orto the hearing examiner is mandatory andmust be strictly followed. Thus, Bichsel v.Carver and Bender both require strict adher-ence to the Texas Local Government Code’s re-quirements. Bichsel restricts the city to itsoriginal letter in proceedings before the commis-sion, while Bender requires that appellants (po-lice officers and fire fighters) strictly adhereto the appeal invocation requirements. Nonethe-less, an abatement is permissible under Bich-sel’s and Bender’s frameworks. The court findsnothing under the Code to prevent the hearingexaminer from offering an officer an abate-ment and a chance to change his election, hav-ing full knowledge of the appeal limitations. Anamended letter of disciplinary action is not nec-essary, as long as the officer has actual knowl-edge of the appeal limitation when he makes hiselection. The purpose of the notice provisionis satisfied by ensuring the officer has thisknowledge in some way, prior to making theelection. The purpose of the provision was toensure that fire fighters and police officers arefully aware of a significant consequence.

Administrative Law > Agency Adjudication > Review

288 S.W.3d 389, *389; 2009 Tex. LEXIS 395, **1

of Initial DecisionsCivil Procedure > ... > Responses > Defenses, Demur-rers & Objections > Waiver & Preservation of De-fensesGovernments > Legislation > InterpretationGovernments > Local Governments > Employees & Of-ficials

HN34 During the abatement, should the officerchoose to change his election and appeal tothe commission, the hearing examiner may dis-miss the case, so that the officer is permitteda reasonable time to appeal to the commission.The Texas Local Government Code requiresan appeal within 10 days of the notice of sus-pension, a requirement strictly enforced in Cityof Temple Firemen’s and Policemen’s CivilService Commission v. Bender. Tex. Loc. Gov’tCode Ann. § 143.010(a). But in interpretingthis deadline, the court must presume the Legis-lature intended a just and reasonable resultand a result feasible of execution. Tex. Gov’tCode Ann. § 311.021(3), (4). Therefore, the courtholds that Bender applies when the officer’sfailure to appeal within the 10-day deadline is at-tributable to the officer, but when the offi-cer’s failure to appeal within the deadline isnot attributable to the officer, the statute per-mits a reasonable extension of time. The courthave recognized the Code’s strict require-ments in other contexts, stating that the full per-formance of all conditions established by thecivil service laws is an essential prerequisite tothe jurisdiction of the removing body overthe subject matter of the removal of an offi-cer.


HN35 The court sees nothing in the Texas Lo-cal Government Code preventing a hearing ex-aminer from informing the police officer or firefighter of the appellate limitations at the startof the hearing, so as to avoid this type of situa-tion. The Code grants the hearing examiner dis-cretion in conducting the hearing.

Administrative Law > ... > Statutory Rights > Impar-tial Decisionmaker > General Overview

HN36 See Tex. Loc. Gov’t Code Ann. §143.010(g).

Administrative Law > Agency Adjudication > Presid-ing Officers > Duties & Powers

HN37 See Tex. Loc. Gov’t Code Ann. §143.057(f).

Civil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General OverviewGovernments > Legislation > Statute of Limita-tions > Tolling

HN38 Tex. Loc. Gov’t Code Ann. § 16.064 sus-pends the limitations period when a party mis-takenly, and in good faith, files suit in onecourt, when jurisdiction was only proper in an-other, so that the plaintiff has an opportunityto re-file the case. Tex. Loc. Gov’t Code Ann.§ 16.064.

Civil Procedure > Appeals > Remands

HN39 Tex. R. App. P. 60.3 permits remand inthe interest of justice.

Counsel: For City of DeSoto, Texas, PETI-TIONER: Mr. Peter G. Smith, Ms. Amber L.Slayton, Nichols Jackson Dillard Hager &Smith, Dallas, TX; ; Mr. Braden Ward Metcalf,Nichols Jackson Dillard Hager & Smith, LLP,Dallas, TX.

For White, Mr. Justin, RESPONDENT: Mr.Lance Franklin Wyatt, Attorney at Law, Arling-ton, TX; Ms. Rhonda Elaine Cates, Law Of-fice of Rhonda E. Cates, PLLC, Garland, TX;Mr. Randy Doubrava, Texas Municipal PoliceAssn., Austin, TX.

Judges: JUSTICE GREEN delivered the opin-ion of the Court.

Opinion by: Paul W. Green

Opinion

[*391] HN1 A police officer who has beensuspended from duty has a right to appeal thataction to either a civil service commission orto an independent, third-party hearing exam-

288 S.W.3d 389, *389; 2009 Tex. LEXIS 395, **1

iner. If the officer appeals to a hearing exam-iner, his ability to seek further review in a dis-trict court is severely limited. The suspendedpolice officer in this case elected to appeal to ahearing examiner, but the City failed to in-form him of the appeal limitation, as it was re-quired to do by statute. The court of appealsconcluded that the notification requirement is ju-risdictional, and that its omission deprives ahearing examiner of authority to hear an ap-peal. 232 S.W.3d 379, 383-84. However, we holdthat the pre-appeal notice provision is not ju-risdictional. Accordingly, we reverse the court ofappeals’ judgment.

I

Justin White, a member of the DeSoto PoliceDepartment, was suspended following two inter-nal investigations which the Department al-leged revealed improper conduct. The policechief delivered a letter of indefinite suspensionto White, alleging that he abused [**2] sicktime policy, lied to an investigator, and inter-fered with a prosecution, all of which violatednumerous department policies. The letter metalmost all of the applicable requirements re-quired by statute. See generallyTEX. LOC.GOV’T CODE §§ 143.001-.363. It was issuedtimely, and it notified White that an appeal hadto be filed with either the Civil Service Com-mission or an independent third-party hearingexaminer within ten days of receipt. See id.§§ 143.052(c), (d); .057(a). However, the letterdid not notify White that an appeal to a hear-ing examiner would limit his ability to seek fur-ther review with a district court, as requiredby the Code. See id. § 143.057(a), (j).

White elected to appeal the suspension to a hear-ing examiner, where he was represented bycounsel. As soon as the hearing began, Whitecomplained that the examiner was without juris-diction to hear his appeal because the City’s let-ter failed to notify him of the appeal limita-tion, as required by the Code. In an attempt torectify the omission, the examiner offeredWhite an abatement, a continuance, and the op-portunity to change his election, all of which

White refused. The examiner then proceededwith the hearing, [**3] finding that jurisdic-tion was proper, as the City had substantiallycomplied with the notice requirements underthe Code. After the [*392] hearing, the exam-iner upheld White’s suspension.

White filed suit in district court, arguing thatthe examiner was without jurisdiction to hear hisappeal. See id. HN2 § 143.057(j) (permittingjudicial review of hearing examiner decision ongrounds that the examiner was without jurisdic-tion). The trial court agreed, granting sum-mary judgment in favor of White and orderingthe City to reinstate White, correct his employ-ment records, and pay his attorney’s fees. Thecourt of appeals affirmed, holding that the no-tice requirements under the Code were jurisdic-tional, and that substantial compliance withthose requirements did not suffice. 232 S.W.3dat 383-84. The court of appeals also heldthat White could recover attorney’s fees underthe Code. Id. at 384.

The City petitioned the Court, arguing: (1) thenotice provision is not jurisdictional; (2)even if it is jurisdictional, substantial compli-ance satisfies the notice requirements under theCode; and (3) if White is entitled to relief,the trial court’s grant of attorney’s fees ex-ceeded the remedies available [**4] under theCode. We agree with the City that HN3 no-tice of the appeal limitation as required by sec-tion 143.057(a) is not jurisdictional. There-fore, we need not reach the City’s other twoissues.

II

HN4 Chapter 143 of the Local GovernmentCode, known as the Fire Fighter and Police Of-ficer Civil Service Act, outlines the disciplin-ary process by which a municipality may sus-pend an officer and how that officer mayappeal the suspension. TEX. LOC. GOV’TCODE §§ 143.051-.057. 1 A police departmentmay suspend an officer for a violation ofcivil service rules. Id. § 143.052(b). The offi-cer may then appeal the suspension to either the

1HN5 The Code distinguishes between municipalities with a population of less than 1.5 million, and those with a population

288 S.W.3d 389, *391; 2009 Tex. LEXIS 395, **1

Fire Fighters’ and Police Officers’ Civil Ser-vice Commission, or an independent third-party hearing examiner. Id. §§ 143.010, .053,.057(b). If the officer appeals to the Commis-sion, the officer may seek review of the Com-mission’s decision with a district court,which conducts a de novo review. Id. §143.015(b). However, if the officer appeals toa hearing examiner, the officer waives subse-quent review by a district court, id. §143.057(c), except ″on the grounds that the[hearing examiner] 2 was without jurisdictionor exceeded its jurisdiction or that the order wasprocured [**5] by fraud, collusion, or other un-lawful means.″ Id. § 143.057(j).

HN7 The Code specifies how the officermakes this [**6] appellate election. Within120 hours of the suspension, the departmenthead ″shall . . . file a written statement with thecommission giving the reasons for the suspen-sion,″ and also immediately deliver a copyof the statement to the suspended officer. Id. §143.052(c). The statement, also referred to asa letter of [*393] disciplinary action, 3

″mustpoint out each civil service rule alleged tohave been violated . . . and must describe the al-leged acts of the person that the departmenthead contends are in violation of the civil ser-vice rules.″ Id. § 143.052(e). It must inform thesuspended officer that if he chooses to appeal,he must file a written appeal within ten days 4 of

receiving the letter, id. § 143.052(d), and thathe ″may elect to appeal to an independent thirdparty hearing examiner instead of to the com-mission.″ Id. § 143.057(a). Of importance to thiscase, the letter must also inform the officer″that if [he] elects to appeal to a hearing exam-iner, [he] waives all rights to appeal to a dis-trict court,″ id. § 143.057(a), except on thegrounds that ″the arbitration panel was with-out jurisdiction or exceeded its jurisdiction orthat the order was procured by fraud, collu-sion, [**7] or other unlawful means.″ Id. §143.057(j).

Here, it is undisputed that the letter of disciplin-ary action failed to inform White that if heelected to appeal to a hearing examiner, hisrights of review by a district court were waived,except under limited circumstances. See id. §143.057(a), (c), (j). The question is whether thatomission deprived the hearing examiner of ju-risdiction to hear the appeal.

III

A

HN10 ″The failure of a jurisdictional require-ment deprives the court of the power to act(other than to determine that it has no jurisdic-tion), and ever to have acted, as a matter of law.″Univ. of Tex. Sw. Med. Ctr. at Dallas v. Lout-zenhiser, 140 S.W.3d 351, 359 (Tex. 2004).

of 1.5 million or more. See, e.g., TEX. LOC. GOV’T CODE §§ 143.201-.209; 143.101-.135 (both subchapters addressing munici-palities with population of 1.5 million or more). While there are some differences between the two schemes, the appellate pro-cess provisions are similar. Compare id. §§ 143.053, .057, with id. §§ 143.1015, .1016. Thus, our holding with regard to the non-jurisdictional nature of the notice provision applies with equal force under each scheme. See City of Houston v. Clark, 197S.W.3d 314, 317 n.4 (Tex. 2006) (noting that, even though the case implicated a municipality a with a population of more than1.5 million, the decision also applied to those municipalities with less than 1.5 million people).

2HN6 This provision uses the term ″arbitration panel,″ rather than ″hearing examiner.″ TEX. LOC. GOV’T CODE § 143.057(c).

However, we have noted that ″arbitration panel″ is synonymous with ″hearing examiner″ in this context. Clark, 197 S.W.3d at318 n.5.

3HN8 The Code refers to a ″written statement″ and a ″letter of disciplinary action.″ Compare, e.g., TEX. LOC. GOV’T CODE

§ 143.057(a), with id. § 143.052(d). These terms appear to refer to the same document. For purposes of this opinion, we willnot make a distinction between the two and will refer to the document provided to White as a ″letter of disciplinary action.″ Seeid. § 143.057(a).

4HN9 An officer working for a municipality with a population of 1.5 million or more has fifteen days to file an appeal. TEX.

LOC. GOV’T CODE § 143.1015(a).

288 S.W.3d 389, *392; 2009 Tex. LEXIS 395, **4

[**8] 5 If the requirement is not jurisdictional,however, the tribunal may hear the case, al-though other consequences may flow from a par-ty’s failure to comply with the requirement.Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71,75-77 (Tex. 2000); see also Loutzenhiser, 140S.W.3d at 359 (″The failure of a non-jurisdic-tional requirement mandated by statute may re-sult in the loss of a claim, but that failure must betimely asserted and compliance can bewaived.″). We recognized in Dubai that deem-ing a provision jurisdictional ″opens the wayto making judgments vulnerable to delayed at-tack for a variety of irregularities that per-haps better ought to be sealed in a judgment.″Dubai, 12 S.W.3d at 76 (citing RESTATEMENT(SECOND) OF JUDGMENTS § 12 cmt. b, at118 (1982)). ″[T]he modern direction of policyis to reduce the vulnerability of final judg-ments to attack on the ground that the tribunallacked subject matter jurisdiction.″ Id. (citingRESTATEMENT (SECOND) OF JUDGMENTS§ 11 cmt. e, at 113 (1982)). Because of theseconsequences, we have been reluctant to con-clude that a provision is jurisdictional, absentclear legislative intent to that effect. Id. at 75-76; see also Igal v. Brightstar Info. Tech Group,Inc., 250 S.W.3d 78, 83 (Tex. 2008).

[*394] As an initial matter, White argues thatDubai’s reasoning does not apply here be-cause Dubai dealt with a court of general juris-diction, whereas a hearing examiner is a tribu-nal of very limited jurisdiction as prescribed bystatute. Dubai was a wrongful death action inwhich the deceased was a foreign citizen. 12S.W.3d at 73. The plaintiff filed suit under astatute, which permitted the claim as long as thedeceased’s country had ″equal treaty rights″

with the United States. Id. at 74. We held thatthe plaintiff did not have to establish ″equaltreaty rights″ to invoke the jurisdiction of thetrial court. Id. at 73. In reaching this conclu-sion, we rejected an earlier distinction wehad made when reviewing jurisdictional ques-tions, where we differentiated between specially

-created statutory claims and common-lawclaims. Id. at 76 (overruling Mingus v. Wadley,115 Tex. 551, 285 S.W. 1084 (1926),[**10] ″to the extent that it characterize the

plaintiff’s failure to establish the statutory pre-requisite as jurisdictional″). Instead, HN11 weadopted an approach to jurisdictional questionsdesigned to strengthen finality and reduce thepossibility of delayed attacks on judgments, re-gardless of whether the claim was anchoredin common law or was a specially-created statu-tory action. Id. at 75-76. Thus, White missesour focus, post-Dubai. We recognize that a hear-ing examiner is a tribunal of very limited juris-diction, and that it exercises special func-tions as dictated by statute. SeeTEX. LOC.GOV’T CODE § 143.057. But even though theexaminer hears a limited type of case, consis-tent with Dubai, our focus is to avoid a resultthat leaves the decisions and judgments ofthe hearing examiner in limbo and subject to fu-ture attack, unless that was the Legislature’sclear intent. See Igal, 250 S.W.3d at 84.

White argues that in an administrative context,the possibility of a delayed attack on a judg-ment is not present, in part because a later chal-lenge to subject-matter jurisdiction is limitedto the appeal process outlined in the Code. See-TEX. LOC. GOV’T CODE § 143.057(j) (per-mitting appeal to district [**11] court from hear-ing examiner ″only on the grounds that the[hearing examiner] was without jurisdiction orexceeded its jurisdiction or that the orderwas procured by fraud, collusion, or other un-lawful means″). White cites no authority for thisproposition, and HN12 we are not convincedthat a delayed attack on an administrative judg-ment is an illusory concern. See, e.g., RE-STATEMENT (SECOND) OF JUDGMENTS §12 cmt. e., at 123 (1982) (″There remain courtsand administrative tribunals staffed by judgesuntrained in law or whose jurisdiction is so nar-row as to be nearly ministerial. The opportu-nity to challenge subject matter jurisdiction insuch a forum may therefore be inadequate. When

5 We [**9] recently noted in that ″[a]lthough the Legislature subsequently provided that the notice requirement at issue in Lout-zenhiser was jurisdictional, the Court’s reasoning [with regard to statutory analysis of alleged jurisdictional provisions] remainsvalid.″ Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 84 (Tex. 2008).

288 S.W.3d 389, *393; 2009 Tex. LEXIS 395, **8

this is so, a challenge to subject matter jurisdic-tion may properly be permitted through subse-quent attack on the judgment.″); see alsoIgal, 250 S.W.3d at 83 (applying Dubai’s rea-soning in an administrative context).

Consistent with Dubai, then, we begin with thepresumption that the Legislature did not in-tend to make the notice under section 143.057(a)jurisdictional; a presumption overcome onlyby clear legislative intent to the contrary.

B

HN13 To determine whether a statutory require-ment is jurisdictional, we [**12] apply statu-tory interpretation principles. Igal, 250 S.W.3d at84. As with any statutory provision, our goalis to ascertain legislative intent by examining thestatute’s plain language. F.F.P. Operating Part-ners, L.P. v. Duenez, 237 S.W.3d 680, 684(Tex. 2007). We review this statutory interpreta-tion question de novo. Id. at 683. [*395]″Since the Legislature is bound to know the con-sequences of making a requirement jurisdic-tional, one must ask, in trying to determine leg-islative intent, whether the Legislatureintended those consequences.″ Loutzenhiser,140 S.W.3d at 359.

HN14 We consider a number of factors in deter-mining whether the Legislature intended thata provision be jurisdictional. See generally Hel-ena Chem. Co. v. Wilkins, 47 S.W.3d 486,495 (Tex. 2001). But, as with any statute, we be-gin with the text. Meritor Automotive, Inc. v.Ruan Leasing Co., 44 S.W.3d 86, 89 (Tex.2001); Helena Chem., 47 S.W.3d at 493. Sec-tion 143.057(a) provides:

HN15 In addition to the other noticerequirements prescribed by thischapter, the written notice for a pro-motional bypass or the letter of disci-plinary action, as applicable, issuedto a fire fighter or police officer muststate that in an appeal of an indefi-nite [**13] suspension, a suspen-sion, a promotional bypass, or a rec-ommended demotion, the appealingfire fighter or police officer may elect

to appeal to an independent thirdparty hearing examiner instead of tothe commission. The letter must alsostate that if the fire fighter or po-lice officer elects to appeal to a hear-ing examiner, the person waives allrights to appeal to a district court ex-cept as provided by Subsection (j).

TEX. LOC. GOV’T CODE § 143.057(a)(emphasis added). Subsection (j) states thelimited exception: HN16 ″[a] districtcourt may hear an appeal of a hearing ex-aminer’s award only on the grounds thatthe [hearing examiner] was without juris-diction or exceeded its jurisdiction orthat the order was procured by fraud, col-lusion, or other unlawful means.″ Id. §143.057(j).

HN17 Section 143.057(a) clearly requires thatthe letter notify the officer of the appeal limita-tion. It provides that the letter must informthe officer of the limitation. Id. § 143.057(a).The Code Construction Act explains that ″’must’creates or recognizes a condition precedent,″TEX. GOV’T CODE § 311.016(3), and we haverecognized that ″must″ generally means man-datory. Helena Chem., 47 S.W.3d at 493. Therest of [**14] the Code and its apparent ob-jective also indicate this provision is manda-tory. See id. at 494 (″To determine whether theLegislature intended a provision to be manda-tory or directory, we consider the plain mean-ing of the words used, as well as the entireact, its nature and object, and the consequencesthat would follow from each construction.″).The Code establishes two alternative means forofficers to appeal: to the Commission or tothe hearing examiner. TEX. LOC. GOV’T CODE§§ 143.053, .057. These two avenues of ap-peal, however, diverge on the right to further ju-dicial review. If the officer does not know ofthese limitations, then the officer is unable toproperly assess which appeal route to take. Thisnotice protects the officer’s appellate rights.Thus, we hold that the notice provision undersection 143.057(a) is mandatory.

But HN18 ″just because a statutory require-

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Justin P.Nichols

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Justin P.Nichols

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Justin P.Nichols

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ment is mandatory does not mean that compli-ance with it is jurisdictional.″ Albertson’s,Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex.1999). The Code does not contain any explicitlanguage indicating that this notice require-ment is jurisdictional. White points to anotherprovision, section 311.034 of the GovernmentCode, [**15] and argues that it provides thelanguage necessary to deem this notice require-ment jurisdictional. Section 311.034, part ofthe Code Construction Act, provides: ″Statu-tory prerequisites to a suit, including the provi-sion of notice, are jurisdictional requirementsin all suits against a governmental entity.″ TEX.GOV’T CODE § 311.034. But this provisiondoes not control in this [*396] case. First,HN19 this provision does not apply to the con-struction of all statutes. Section 311.034 spe-cifically addresses waivers of sovereign immu-nity, an issue not implicated here. See id.(″In order to preserve the [L]egislature’s inter-est in managing state fiscal matters throughthe appropriations process, a statute shall notbe construed as a waiver of sovereign immu-nity unless the waiver is effected by clear andunambiguous language.″ (emphasis added)).Also, the notice requirement here is not a statu-tory prerequisite to suit. As noted below, thestatute requires notice, but it does not specifi-cally mandate it as a prerequisite to suit or ap-peal. Thus, the text of the statute does not in-dicate that the Legislature intended the provisionto be jurisdictional.

HN20 We have also looked for ″the presenceor absence [**16] of specific consequences fornoncompliance″ in determining whether a pro-vision is jurisdictional. Helena Chem., 47S.W.3d at 495. Here, the statute does not pro-vide a specific consequence for noncompli-ance. See generallyTEX. LOC. GOV’T CODE§§ 143.001-.363. As a comparison, section143.052(e) provides that the letter of disciplin-

ary action provided to the officer ″must pointout each civil service rule alleged to have beenviolated . . . and must describe the allegedacts.″ Id. § 143.052(e). Subsection (f) providesthe remedy: ″If the department head does notspecifically point out in the written statement theact or acts of the . . . police officer that alleg-edly violated the civil service rules, the commis-sion shall promptly reinstate the person.″ Id.§ 143.052(f). By arguing that the City’s failureto provide the required notice is jurisdic-tional, White seeks the same remedy providedfor in section 143.052(f)--dismissal. In fact, thetrial court dictated this very result in its ordergranting summary judgment in favor of White.However, ″[w]hen the [**17] Legislature in-cludes a right or remedy in one part of a code butomits it in another, that may be preciselywhat the Legislature intended,″ and ″we musthonor that difference.″ PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146S.W.3d 79, 84 (Tex. 2004). So, we must as-sume the Legislature did not intend that a dis-missal be the consequence for noncompliance.

Finally, HN21 we look to ″the consequencesthat result from each possible interpretation.″Helena Chem., 47 S.W.3d at 495. One possibleinterpretation is that section 143.057(a)’s no-tice requirement is jurisdictional. The conse-quence of this interpretation is evident inthis very case. The trial court’s order reinstatedWhite, permitting him to rejoin the policeforce without an adjudication of the very seri-ous allegations against him. 6 Reinstating an of-ficer in this situation is troubling, given the vi-tal role of police officers and fire fighters inour society, and the need for continued publictrust in the exercise of their duties. See CodeConstruction Act, TEX. GOV’T CODE §311.021(5) (″In enacting a statute, it is pre-sumed that . . . public interest is favored overany private interest″). This cannot be the result

6 The City alleged White abused the Department’s sick time policy during a holiday weekend and subsequently lied to a super-visor about his actions. The City states that, due to an internal investigation which found White was untruthful, the District At-torney’s office was forced to alert defense counsel in all pending cases in which White was a potential witness, which the City stateslead to the dismissal of twenty-one pending criminal cases. The City also alleges that White asked ″an Assistant District Attor-ney to reduce or drop charges against an individual he had arrested for driving while under the influence of alcohol″ and that af-ter failing to appear at trial, White informed the prosecutor ″that he had become friends with the suspect and despite having ef-fectuated the arrest, he could no longer testify that the suspect was intoxicated.″

288 S.W.3d 389, *395; 2009 Tex. LEXIS 395, **14

[**18] the [*397] Legislature intended, espe-cially where an interpretation which con-cludes that the provision is not jurisdictionalwould still protect the officer’s appellate rights,as discussed below.

C

White urges that our decision in City ofTemple Firemen’s and Policemen’s Civil Ser-vice Commission v. Bender precludes a findingthat the notice provision is [**19] non-jurisdictional. 787 S.W.2d 951 (Tex. 1990) (percuriam). Bender recognized the need forstrict adherence to the Code when an officer in-vokes the Civil Service Commission appellateprocess. See generally id. at 951. In Bender, thequestion was ″whether a civil service commis-sion’s jurisdiction has been invoked undersection 143.010(b) of the Texas Local Govern-ment Code if a fire fighter’s or police offi-cer’s notice of appeal fails to allege the basisof the appeal.″ Id. Section 143.010(b) provides:

The appeal must include the basis forthe appeal and a request for a com-mission hearing. The appeal must alsocontain a statement denying thetruth of the charge as made, a state-ment taking exception to the legal suf-ficiency of the charge, a statement al-leging that the recommendedaction does not fit the offense or al-leged offense, or a combination ofthese statements.

TEX. LOC. GOV’T CODE § 143.010(b).Officer Bender was suspended indefinitelyand attempted to appeal to the Civil Ser-vice Commission. Bender, 787 S.W.2d at951-52. His attorney mailed a letter tothe Commission, advising of Bender’s in-tention to appeal, but the letter failed tolist the specific grounds for appeal as re-quired [**20] by section 143.010(b). Id. at952. After the city attorney notified himof the omission, Bender submitted anamended notice, which the Commission re-fused as untimely under the ten-day dead-line imposed by the Code. Id.; see also-

TEX. LOC. GOV’T CODE § 143.010(a).We held that ″one of the statements con-tained within section 143.010(b) is re-quired to be included in a notice of appealin order to invoke the jurisdiction of acivil service commission,″ and because hisfirst notice did not, Bender failed to in-voke the Commission’s jurisdiction.Bender, 787 S.W.2d at 952. We then heldthat Bender’s amended notice of appealalso failed to invoke the jurisdiction of theCommission because the ten-day dead-line under section 143.010(a) ″is manda-tory and must be strictly followed.″ Id. at953.

White argues Bender dictates that a failure tomeet a particular statutory requirement must bejurisdictional. But Bender focused on whetherthe officer had timely and properly invoked theCommission’s jurisdiction--ensuring the casewas properly before the Commission. Id. at 951-53; see also Essenburg v. Dallas County, 988S.W.2d 188, 189 (Tex. 1998) (per curiam) (cit-ing Morrow v. Corbin, 122 Tex. 553, 62S.W.2d 641, 644 (Tex. 1933) [**21] and not-ing that HN22 the hallmark of a jurisdictionalprovision is that it ″seeks to assure the appro-priate body adjudicates the dispute″). Under theCivil Service Code, only a police officer orfire fighter may invoke the appeals process. See-TEX. LOC. GOV’T CODE §§ 143.010(a);.057(a); see also City of Houston v. Clark, 197S.W.3d 314, 318 (Tex. 2006). Thus, when itcomes to invoking the jurisdiction of the Com-mission or hearing examiner, the focus must al-ways be on the officer’s actions. The City’s no-tice letter does not invoke the appealsprocess. It is similar to a pre-suit notice require-ment, which is not jurisdictional. See, e.g.,Hines v. Hash, 843 S.W.2d 464, 469-70 (Tex.1992) (holding that defendant had waived pre-suit notice requirement under the DeceptiveTrade Practices--Consumer Protection Act byfailing to request [*398] an abatement). Thus,

288 S.W.3d 389, *396; 2009 Tex. LEXIS 395, **18

Bender is distinguishable. 7

D

For these reasons, we hold that the City’s fail-ure to provide the mandatory notice under sec-tion 143.057(a) did not deprive the hearing ex-aminer of jurisdiction to hear White’s appeal.

IV

Having determined that the notice provision isnot jurisdictional, we must determine theproper remedy, if any, for the City’s failure tocomply. HN24 ″When the statute is silent as tothe consequences for noncompliance, we lookto the statute’s purpose in determining[**23] the proper remedy.″ Helena Chem., 47

S.W.3d at 493. Section 143.001(a) provides:

HN25 The purpose of this chapter isto secure efficient fire and police de-partments composed of capable per-sonnel who are free from politicalinfluence and who have permanentemployment tenure as public servants.

TEX. LOC. GOV’T CODE § 143.001(a).As discussed above, HN26 dismissal of thecase and the charges against the officercannot be the remedy. The statute’s pur-pose of seeking ″efficient″ and ″capable″

personnel is not served by dismissingthe case and permitting potentially unfit of-ficers to return to the force without a de-termination of the substance of the com-plaint against them. At the same time,the possibility of imposing no conse-quences is troubling, given that the re-quired notice is intended to inform the of-ficer of important appellate rights. Theprovision is certainly an important one:″The Legislature’s apparent purpose in [en-

acting the provision] was to ensure thatfire fighters and police officers are fullyaware of a significant consequence that willresult if they elect to have an indepen-dent hearing examiner, rather than theCommission, hear their appeal.″ Clark, 197S.W.3d at 319-20. Thus, we [**24] be-lieve the statute requires some remedy.

HN27 An abatement is generally appropriateto cure pre-suit notice deficiencies. Hubenak v.San Jacinto Gas Transmission Co., 141S.W.3d 172, 184 (Tex. 2004) (holding that abate-ment, for a reasonable period of time, ratherthan dismissal, is appropriate remedy until par-ties meet the pre-suit requirement that theyare ″unable to agree″ on the amount of dam-ages in a condemnation proceeding); Hines, 843S.W.2d at 468 (holding that abatement isproper remedy for failure to give pre-suit no-tice in Deceptive Trade Practices--ConsumerProtection Act case); Schepps v. PresbyterianHosp. of Dallas, 652 S.W.2d 934, 938 (Tex.1983) (holding that abatement is appropriatefor failure to give notice in health care liabilityclaim). We recognize the statute here isunique. Normally, the party that eventuallyfiles suit is required to provide pre-suit notice.See, e.g., Hines, 843 S.W.2d at 465. Underthe Civil Service Act, however, [*399] the Cityprovides notice, and then the officer appeals.We nonetheless conclude that an abatement isthe appropriate remedy because it cures the no-tice omission: it allows the City to notifyWhite of his appellate rights without dismiss-ing [**25] a case against a potentially unfit of-ficer, and it allows White an opportunity tomake an appellate election with full knowledgeof the consequences of choosing each path.

7 Two other cases cited by White are distinguishable for the same reasons. See City of Lubbock v. Elkins, 896 S.W.2d 346, 352(Tex. App.--Amarillo 1995, no writ) (citing Bender, 787 S.W.2d at 953, and holding that an officer’s failure to file an appealwithin ten days of receiving a copy of the written statement [**22] of charges deprived the Commission of jurisdiction under sec-tion 143.052(d)); City of Plano Firefighters’ & Police Officers’ Civil Serv. Comm’n v. Maxam, 685 S.W.2d 125, 128 (Tex. App.--Dallas 1985, writ ref ’d n.r.e.) (holding that because the officer failed to list the specific basis for appeal as required under theCivil Service Code, the Commission lacked jurisdiction to hear the appeal). HN23 Each of these cases, including Bender, were is-sued prior to Dubai, where we extended the presumption against jurisdictional findings from common-law claims to statutory ac-tions. See Dubai, 12 S.W.3d at 75. We note this, not to call into question Bender’s continuing applicability, but rather, to empha-size the proper focus in this jurisdictional inquiry.

288 S.W.3d 389, *398; 2009 Tex. LEXIS 395, **21

White argues the statute does not permit anabatement because a ten-day election deadlineis imposed on White, a deadline long sincepassed. SeeTEX. LOC. GOV’T CODE §143.052(d) (″[T]he [fire fighter or police offi-cer] must file a written appeal with the commis-sion within 10 days after the date the person re-ceives the copy of the [disciplinary]statement.″). He contends that the abatementremedy, or a dismissal allowing him to make anew election after the City provides the appro-priate notice, is precluded by our decisions in Bi-chsel v. Carver, 159 Tex. 393, 321 S.W.2d284 (Tex. 1959), and Bender, 787 S.W.2d 951.We disagree, and hold that an abatement is ap-propriate under the Code, as well as under Bi-chsel’s and Bender’s analyses.

In Bichsel, we analyzed a City’s ability toamend a written statement filed with the CivilService Commission. 321 S.W.2d at 285. Thechief of police suspended Officer Carver, alleg-ing that he violated police department rules. Id.Carver appealed to the Commission, arguingthat the charges were legally [**26] insuffi-cient because the Code required an allegationthat the officer violated the civil servicerules. Id. The City agreed and withdrew thecharges, reinstated Carver, and then the Chief re-suspended him the following day. Id. TheCity then filed a second set of charges, this timeproperly alleging a violation of the civil ser-vice rules. Id. Before the Commission could holda hearing, Carver sought injunctive and man-damus relief in district court, which was granted.Id. We held that the City could not amend theoriginal charges, as the Code prevented it:HN28 ″In any Civil Service hearing hereunder,the department head [the Chief] is hereby re-stricted to his original written statement and

charges which shall not be amended.″ Id. at286 (citing section 16 of the Fireman’s and Po-liceman’s Civil Service Act) (emphasis in origi-nal). 8 We reasoned that a second set ofcharges were equivalent to an amendment tothe original written statement, which was pro-hibited under the Code. See id. at 286-87. Wealso stated that, even if the second set ofcharges were considered new, ″original″ charges,these would be barred by the 120-hour dead-line for filing charges following the suspen-sion. Id. at 287. [**27] 9 We summarized thebarriers to any new or amended charges:

If the new charges be regarded as cor-rections to the original charges aris-ing out of the same incident, they wereinvalid under that part of the statuteprohibiting amendment of the charges.If they were new ’original’ chargesarising out of the same incident, theycame long after 120 hours fromCarver’s suspension on September19. They were thus filed too late.

[*400] Id. The dissent pointed out a thirdbarrier: new, ″original″ charges wouldlikely be precluded by the rule that the de-partment may not suspend an officer foracts that occurred more than six months(now 180 days) prior to the suspension.Id. at 290 (Culver, J. dissenting). 10 Thus,Bichsel laid out a strict rule againstamended letters of disciplinary action, andrecognized the strict time constraints pre-venting the use of replacement letters. 321S.W.2d at 287.

HN33 Bender set out its own strict rules. As dis-cussed above, we held in Bender that the ten-

8 Bichsel analyzed HN29 former section 16 of the Civil Service Act, which is now codified in substantially similar form at sec-tion 143.053(c) of the Local Government Code. 321 S.W.2d at 286; see alsoTEX. LOC. GOV’T CODE § 143.053(c).

9 The 120-hour rule is now codified at section 143.052(c) of the Local Government Code. [**28] TEX. LOC. GOV’T CODE§ 143.052(c)HN30 (″If the department head suspends a fire fighter or police officer, the department head shall, within 120 hours af-ter the hour of suspension, file a written statement with the commission giving the reasons for the suspension. The departmenthead shall immediately deliver a copy of the statement in person to the suspended fire fighter or police officer.″)

10HN31 The 180-day rule is codified at section 143.052(h) of the Local Government Code. TEX. LOC. GOV’T CODE §

143.052(h)HN32 (″In the original written statement and charges and in any hearing conducted under this chapter, the departmenthead may not complain of an act that occurred earlier than the 180th day preceding the date the department head suspends thefire fighter or police officer.″).

288 S.W.3d 389, *399; 2009 Tex. LEXIS 395, **25

day deadline to elect whether to appeal to theCommission or to the hearing examiner ″is man-datory and must be strictly followed.″ 787S.W.2d at 953. Thus, Bichsel and Bender both re-quire strict adherence to the Code’s require-ments. 11Bichsel restricts the City to its origi-nal letter in proceedings before the Commission,while Bender [**29] requires that appellants(police officers and fire fighters) strictly adhereto the appeal invocation requirements. None-theless, an abatement is permissible under Bich-sel’s and Bender’s frameworks. We find noth-ing under the Code to prevent the hearingexaminer from doing what he did in this case--offering White an abatement and a chance tochange his election, having full knowledge ofthe appeal limitations. An amended letter of dis-ciplinary action is not necessary, as long asthe officer has actual knowledge of the appeallimitation when he makes his election. The pur-pose of the notice provision is satisfied by en-suring the officer has this knowledge insome way, prior to making the election. SeeClark, 197 S.W.3d at 319-20 (finding that thepurpose of the provision ″was to ensure that firefighters and police officers are fully aware ofa significant consequence″). HN34 During theabatement, should the officer choose tochange his election and appeal to the Commis-sion, the hearing examiner may dismiss thecase, so that the officer is permitted a reason-able time to appeal to the Commission. TheCode requires an appeal within ten days ofthe notice of suspension, a requirement strictly[**30] enforced in Bender. SeeTEX. LOC.

GOV’T CODE § 143.010(a); Bender, 787S.W.2d at 953. But in interpreting this dead-line, we must presume the Legislature intended

″a just and reasonable result″ and ″a result fea-sible of execution.″ TEX. GOV’T CODE §311.021(3), (4). Therefore, we hold that Benderapplies when the officer’s failure to appealwithin the ten-day deadline is attributable tothe officer, but when, as here, the officer’s fail-ure to appeal within the deadline is not attrib-utable to the officer, the statute permits a reason-able extension of time. 12

V

Officer White was given an opportunity tochange his election by the hearing [*401] ex-aminer before the hearing commenced. He de-clined. Generally, because we hold that the no-tice provision is not jurisdictional, we wouldalso hold White waived any complaint of theomission, given that White had full knowledgeof the appeal limitation under section143.057(j). See [**32] Loutzenhiser, 140S.W.3d at 358-59. However, we recognize that,in making his decision to decline the opportu-nity to change his election, White could havebeen reasonably relying on Bender’s strict en-forcement of the ten-day election deadline. Un-der these circumstances, White should begiven an opportunity to make a new election. Al-though not directly applicable, section 16.064of the Texas Civil Practice and Remedies Codeprovides us guidance. HN38 Section 16.064suspends the limitations period when a partymistakenly, and in good faith, files suit in onecourt, when jurisdiction was only proper inanother, so that the plaintiff has an opportunityto re-file the case. TEX. CIV. PRAC. & REM.CODE § 16.064. We conclude that the samepolicy reasons behind section 16.064 applyhere to permit White an opportunity to make a

11 We have recognized the Code’s strict requirements in other contexts, stating that ″[t]he full performance of all conditions es-tablished by the civil service laws is an essential prerequisite to the jurisdiction of the removing body over the subject matterof the removal of an officer.″ City of Sherman v. Arnold, 148 Tex. 516, 226 S.W.2d 620, 622 (Tex. 1950). In Arnold, the City of Sher-man attempted to suspend Arnold before the newly-appointed Civil Service Commission had completed all of the steps neces-sary to set up the Commission--namely, promulgating rules and regulations to govern its functions. Id.

12 We are not presented with a situation [**31] where the officer first became aware of the appellate limitations during themidst of the hearing, or after the hearing examiner’s judgment was issued. White argued from the start that the hearing examinerwas without jurisdiction, at which time the examiner offered an abatement. HN35 We see nothing in the Code preventing a hear-ing examiner from informing the police officer or fire fighter of the appellate limitations at the start of the hearing, so as to avoidthis type of situation. We also note that the Code grants the hearing examiner discretion in conducting the hearing. SeeTEX.LOC. GOV’T CODE § 143.010(g)HN36 (″the commission shall conduct the hearing fairly and impartially as prescribed by this chap-ter and shall render a just and fair decision″); § 143.057(f)HN37 (″the hearing examiner has the same duties and powers as the com-mission″).

288 S.W.3d 389, *400; 2009 Tex. LEXIS 395, **27

new election. For these reasons, we remand thecase to the district court with instructions to re-mand to the hearing examiner, so that White hasan opportunity to make an appellate electionwith full knowledge of his appellate rights andwith knowledge of our guidance in this opin-ion.

VI

We reverse the court of appeals’ judgment andremand the case to the district court for[**33] further proceedings in accordance with

this opinion. SeeHN39 TEX. R. APP. P. 60.3(permitting remand in the interest of justice).

Paul. W. Green

Justice

OPINION DELIVERED: June 19, 2009

288 S.W.3d 389, *401; 2009 Tex. LEXIS 395, **32

JUSTIN P. NICHOLS ATTORNEY AT LAW .

106 S. Saint Mary’s Street

255 One Alamo Center

San Antonio, Texas 78205

(210) 354-2300 phone

(800) 761-5782 facsimile

[email protected]

March 1, 2013 BY FAX – (214) 653-6646

The Honorable Carlos Cortez 44th Judicial District Court 600 Commerce Street, 5th Floor, New Tower Dallas, Texas 75202

Re: Cause No.: 2012-DC-10604 Melissa Kingston v. Avi Adelman In the 44th Judicial District Court, Dallas County, Texas

Dear Judge Cortez: Per your directive at yesterday’s hearing, I am submitting DEFENDANT’S SUPPLEMENTAL BRIEF

IN OPPOSITION TO PLAINTIFF’S MOTIONS TO PROCEED WITH DISCOVERY for your consideration. I have also emailed an appendix of the relevant case law to your administrator, Robyn Poston, so as to avoid overwhelming your fax machine with too many pages. I understand she will email the files to you upon your request. I have also enclosed a proposed Order on Plaintiff’s Motions to Proceed with Discovery. I understand you intend on ruling on this matter later today. I am available by cell phone at (972) 900-2829, by fax to (800) 761-5782, or by email at [email protected] to be informed of your decision. Thank you for your consideration of this matter, and please call with any questions. Sincerely,

THE N ICHOL S LAW F IRM , P .L .L .C .

JUSTIN P. NICHOLS Enclosures cc: VIA FAX – (972) 788-2667 w/ enclosures (Appendix emailed to [email protected]) Ryan Lurich, Esq. Attorney for Plaintiff

mailto:[email protected]


Document(1)

1. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486



CautionAs of: March 1, 2013 1:14 PM EST

Helena Chem. Co. v. Wilkins


February 7, 2001, Argued ; April 26, 2001, Delivered

NO. 00-0418

Reporter: 47 S.W.3d 486; 2001 Tex. LEXIS 38; 44 Tex. Sup. J. 675

HELENA CHEMICAL COMPANY AND HY-PERFORMER SEED COMPANY, PETITION-ERS v. KENNETH WILKINS AND TOMWILKINS INDIVIDUALLY, AND D/B/ACHAPOTAL FARMS AND PORCIONES 99PROPERTIES, GEEN WILKINS AND MARKWILKINS, INDIVIDUALLY AND D/B/A TA-BASCO, AND WILKINS FAMILY LIMITEDPARTNERSHIP, RESPONDENTS

Prior History: [**1] ON PETITION FORREVIEW FROM THE COURT OF APPEALSFOR THE FOURTH DISTRICT OF TEXAS.

Disposition: Court of appeals’ judgment af-firmed.

Core Terms

arbitration, inspection, plants, crop, seed, trialcourt, mandatory, warranty, farmer, court ofappeals, misrepresentation, recommendations,label, reliability, farming, grain, reasonablecertainty, unconscionability, arbitration board,legal action, noncompliance, puffing, lostprofits, tolerant, dryland, seller, lost-profits,prerequisite, harvesting, unreliable

Case Summary

Procedural PostureRespondent farmers sued petitioner seed sellersin a Texas trial court for Deceptive Trade Prac-tices--Consumer Protection Act violations,breach of warranties, and fraud. Petitioners filed

for arbitration, but the Texas Plant and SeedBoard declined to arbitrate the case. A jury en-tered judgment for respondents on all but thefraud claim. The Court of Appeals for the FourthDistrict of Texas affirmed the judgment. Peti-tioners sought review.

OverviewRespondents suffered losses from poor harvestsafter they planted petitioners’ seeds. Respon-dents had relied upon petitioners’ representa-tions that the seeds were suited for respon-dents’ climate and soil in planting the seeds.The trial court abated the proceeding for arbitra-tion under the Texas Seed Arbitration Act,Tex. Agric. Code Ann. §§ 64.001- 64.007. Re-spondents waited 15 months before filing for ar-bitration. The arbitration board declined tohear the claim because of the delay. After theabatement was lifted the jury entered judgmentfor respondents. The supreme court found re-spondents’ delay in submitting their claims to ar-bitration did not jurisdictionally bar their suit,(2) the trial court did not abuse its discretion inadmitting respondents’ expert’s testimony,and (3) there was sufficient evidence to sup-port the jury’s liability, causation, and damagesfindings.

OutcomeJudgment was affirmed as the suit was not juris-dictionally barred, the trial court properly per-mitted respondents’ expert witness to testify, andthe evidence was sufficient to support the ju-ry’s verdict.


Civil Procedure > Pretrial Matters > Alternative Dis-pute Resolution > Mandatory ADR

HN1 The Texas Legislature enacted the TexasSeed Arbitration Act, Tex. Agric. Code Ann. §§64.001- 64.007, in 1989 to provide for an un-biased third party investigation by the State Seedand Plant Board of the Texas Department ofAgriculture of complaints concerning seed per-formance.

Civil Procedure > Pretrial Matters > Alternative Dis-pute Resolution > Mandatory ADRGovernments > Agriculture & Food > Distribution, Pro-cessing & Storage

HN2 See Tex Agric. Code Ann. § 64.002(a).

Civil Procedure > ... > Alternative Dispute Resolu-tion > Judicial Review > General OverviewCivil Procedure > Pretrial Matters > Alternative Dis-pute Resolution > Judicial Review

HN3 See Tex. Agric. Code Ann. § 64.004.


HN4 See Tex. Agric. Code Ann. § 64.005(b).



Governments > Legislation > General OverviewGovernments > Legislation > Interpretation

HN6 A court must construe statutes as writtenand, if possible, ascertain legislative intentfrom the statute’s language. Even when a stat-ute is not ambiguous on its face, a court canconsider other factors to determine the TexasLegislature’s intent, including: the object soughtto be obtained; the circumstances of the stat-ute’s enactment; the legislative history; the com-mon law or former statutory provisions, includ-ing laws on the same or similar subjects; theconsequences of a particular construction; ad-ministrative construction of the statute; and thetitle, preamble, and emergency provision.Tex. Gov’t Code Ann. § 311.023.


HN7 A court must always consider a statute asa whole rather than its isolated provisions. Acourt should not give one provision a meaningout of harmony or inconsistent with other pro-visions, although it might be susceptible to sucha construction standing alone. A court must pre-sume that the Texas Legislature intends an en-tire statute to be effective and that a just and rea-sonable result is intended. Tex. Gov’t CodeAnn. § 311.021(2),(3).


HN8 When used in a statute, the term ″must″creates or recognizes a condition precedent. Tex.Gov’t Code Ann. § 311.016(3). While Texascourts have not interpreted must as often as shall,both terms are generally recognized as manda-tory, creating a duty or obligation. Tex.Gov’t Code Ann. § 311.016(2) and (3). Theword must is given a mandatory meaning whenfollowed by a noncompliance penalty. How-ever, courts have held language that appears toimpose a mandatory duty to be only direc-tory when this interpretation is most consistentwith the Texas Legislature’s intent.


HN9 To determine whether the Texas Legisla-ture intended a provision to be mandatory ordirectory, a court will consider the plain mean-ing of the words used, as well as the entireact, its nature and object, and the consequencesthat would follow from each construction.


HN10 Even if a statutory requirement is manda-tory, this does not mean that compliance is nec-essarily jurisdictional.


HN11 When a statute is silent about the conse-quences of noncompliance, a court will lookto the statute’s purpose to determine the properconsequences.


47 S.W.3d 486, *486; 2001 Tex. LEXIS 38, **1

HN12 See Tex. Agric. Code Ann. § 64.002(a).


HN13 Tex. Agric. Code Ann. § 64.006(a) statesthat a purchaser’s complaint must be filedwithin the time necessary to permit effective in-spection under field conditions. The wordmust creates or recognizes a condition prec-edent. Tex. Gov’t Code Ann. § 311.016(3). TheTexas Legislature has instructed courts to ap-ply this definition unless its context necessarilyrequires a different construction. Tex. Gov’tCode § 311.016.

Civil Procedure > ... > Alternative Dispute Resolu-tion > Judicial Review > General OverviewCivil Procedure > Pretrial Matters > Alternative Dis-pute Resolution > Judicial Review



HN15 To determine whether a statutory timingprovision is mandatory, a court will first lookto whether the statute contains a noncompli-ance penalty. If a provision requires that anact be performed within a certain time withoutany words restraining the act’s performanceafter that time, the timing provision is usually di-rectory.


HN16 The Texas Seed Arbitration Act, Tex. Ag-ric. Code Ann. §§ 64.001- 64.007, states thata purchaser’s complaint must be filed within thetime necessary to permit effective inspectionof the plants under field conditions. Tex. Agric.Code Ann. § 64.006(a).


HN17 When deciding whether the Texas Legis-lature intended a particular provision to be ju-risdictional, a court must consider the conse-quences that result from each possibleconstruction.


HN18 The Texas Seed Arbitration Act, Tex. Ag-ric. Code Ann. §§ 64.001- 64.007, permits theState Seed and Plant Board of the Texas Depart-ment of Agriculture to independently investi-gate and assess a purchaser’s claims. Tex. Ag-ric. Code Ann. § 64.006(d).

Civil Procedure > ... > Alternative Dispute Resolu-tion > Judicial Review > General OverviewCivil Procedure > Pretrial Matters > Alternative Dis-pute Resolution > Mandatory ADR

HN19 By the express terms of the Texas SeedArbitration Act, Tex. Agric. Code Ann. §§64.001- 64.007, the State Seed and Plant Boardof the Texas Department of Agriculture cancarry out an investigation in a number of waysthat do not necessarily require it to conductits own field inspection. For example, the Actauthorizes the Board to delegate all or any partof its investigation to its members. Tex. Ag-ric. Code Ann. § 64.006(g). And the Board maygrow representative samples, conduct hear-ings, and examine the parties. Tex. Agric. CodeAnn. § 64.006(f).

Civil Procedure > ... > Alternative Dispute Resolu-tion > Judicial Review > General OverviewCivil Procedure > Pretrial Matters > Alternative Dis-pute Resolution > Mandatory ADR

HN20 If a purchaser does not submit a claimin time for the State Seed and Plant Board of theTexas Department of Agriculture or the sellerto conduct an effective field inspection, it doesso at its own peril. The Board may make find-ings adverse to the purchaser on this basis. Tex.Agric. Code Ann. § 64.004. If the purchaserthen sues, the Board’s findings and recommen-dations are admissible, and the Texas Seed Ar-bitration Act, Tex. Agric. Code Ann. §§ 64.001-64.007, expressly authorizes the court to bothgive such weight to the Board’s findings of fact,conclusions of law, and recommendations asto damages and costs as the court determines ad-visable and take into account any findingswith respect to the failure of any party to coop-erate in the arbitration proceedings, includingany finding as to the effect of delay in filing the

47 S.W.3d 486, *486; 2001 Tex. LEXIS 38, **1

arbitration claim. Tex. Agric. Code Ann. §64.004.


HN21 A court must presume that every wordin a statute is included purposefully.

Civil Procedure > Pretrial Matters > Alternative Dis-pute Resolution > Mandatory ADRGovernments > Agriculture & Food > Product Qual-ity

HN22 The Texas Seed Arbitration Act, Tex. Ag-ric. Code Ann. §§ 64.001- 64.007, providesthat a complaint must be filed in time to per-mit effective inspection of the plants under fieldconditions, Tex. Agric. Code Ann, § 64.006(a),thus permitting the parties to inspect underfield conditions and provide their reports to theState Seed and Plant Board of the Texas De-partment of Agriculture. Tex. Agric. Code Ann.§ 64.006(h).


HN23 When a Texas statute is modeled after an-other jurisdiction’s, that jurisdiction’s interpre-tation before the Texas Legislature enacts itsstatute may be given weight. However, when theTexas Legislature looks to another jurisdic-tion’s statute, but modifies rather than adoptssome of its provisions, it does so purpose-fully.

Civil Procedure > ... > Alternative Dispute Resolu-tion > Judicial Review > General OverviewCivil Procedure > Pretrial Matters > Alternative Dis-pute Resolution > Mandatory ADRGovernments > Legislation > Interpretation

HN24 When a court is faced with two compet-ing statutory interpretations, the court mustchoose the one most harmonious with an act’sobjectives and other provisions.

Evidence > ... > Testimony > Expert Wit-nesses > General OverviewEvidence > Admissibility > Expert WitnessesEvidence > Admissibility > Expert Witnesses > Ulti-mate Issue

HN25 If scientific, technical, or other special-ized knowledge will assist the trier of fact to un-

derstand the evidence or to determine a fact in is-sue, a witness qualified as an expert byknowledge, skill, experience, training, or educa-tion may testify thereto in the form of opin-ion or otherwise. Tex. R. Evid. 702. Otherwiseadmissible opinion testimony is not objection-able because it embraces an ultimate issue offact. Tex. R. Evid. 704.

Evidence > ... > Testimony > Expert Wit-nesses > General OverviewEvidence > Admissibility > Expert Witnesses

HN26 A two-part test governs whether experttestimony is admissible: (1) the expert must bequalified; and (2) the testimony must be rel-evant and be based on a reliable foundation. Thetrial court makes the initial determinationabout whether the expert and the proffered tes-timony meet these requirements.

Evidence > ... > Testimony > Expert Wit-nesses > General Overview

HN27 A trial court has broad discretion to de-termine the admissibility of expert testimony,and an appellate court will reverse only if thereis an abuse of that discretion.

Evidence > Admissibility > Scientific Evi-dence > Standards for AdmissibilityEvidence > ... > Testimony > Expert Wit-nesses > General OverviewEvidence > Admissibility > Expert Witnesses > DaubertStandardEvidence > ... > Testimony > Expert Wit-nesses > Qualifications

HN28 In deciding if an expert is qualified,trial courts must ensure that those who purportto be experts truly have expertise concerningthe actual subject about which they are offer-ing an opinion. To gauge reliability, Daubert andTex. R. Evid. 702 demand that the districtcourt evaluate the methods, analysis, and prin-ciples relied upon in reaching the opinion.The court should ensure that the opinion com-ports with applicable professional standardsoutside the courtroom and that it will have a re-liable basis in the knowledge and experienceof the discipline.

Evidence > ... > Testimony > Expert Wit-

47 S.W.3d 486, *486; 2001 Tex. LEXIS 38, **1

nesses > General OverviewEvidence > Admissibility > Expert Witnesses

HN29 There must be some basis for an expertopinion offered to show its reliability, and, ul-timately, the trial court must determine how toassess reliability. If an expert relies upon un-reliable foundational data, any opinion drawnfrom that data is likewise unreliable. Further, anexpert’s testimony is unreliable even whenthe underlying data is sound if the expert’s meth-odology is flawed.

Antitrust & Trade Law > Consumer Protec-tion > Deceptive & Unfair Trade Practices > GeneralOverviewTorts > Business Torts > Fraud & Misrepresenta-tion > General Overview

HN30 The Texas Deceptive Trade Practices--Consumer Protection Act prohibits false, mis-leading, or deceptive acts or practices in theconduct of any trade or commerce.

Contracts Law > Types of Commercial Transac-tions > Sales of Goods > General OverviewContracts Law > ... > Buyer’s Damages & Rem-edies > Limitation & Modification > UnconscionableLimitationsContracts Law > ... > Seller’s Damages & Rem-edies > Limitation & Modification > UnconscionableLimitationsTorts > Business Torts > Fraud & Misrepresenta-tion > General Overview

HN31 Tex. Bus. & Com. Code Ann. § 17.46(b)is a laundry list of specifically prohibitedacts. Sections 17.46(b)(5) and 17.46(b)(7) pro-hibit false, misleading, or deceptive acts orpractices including representing that goods andservices have characteristics, ingredients,uses, or benefits which they do not have and rep-resenting that goods or services are of a par-ticular standard, quality, or grade if they are ofanother. Section 17.46(b)(23) prohibits the fail-ure to disclose information concerning goods orservices which was known at the time of thetransaction if such failure to disclose such infor-mation was intended to induce the consumerinto a transaction into which the consumerwould not have entered had the information beendisclosed. Section 17.50 provides the remedy

for violations of the laundry-list provisions of§ 17.46(b) and for any unconscionable action orcourse of action by any person. Actionable rep-resentations may be oral or written.

Antitrust & Trade Law > Consumer Protec-tion > Deceptive & Unfair Trade Practices > GeneralOverviewTorts > Business Torts > Fraud & Misrepresenta-tion > General Overview

HN32 A party need not prove intent to make amisrepresentation under the Texas DeceptiveTrade Practices--Consumer Protection Act §§17.46(b)(5) or 17.46(b)(7)--making the false rep-resentation is itself actionable.

Antitrust & Trade Law > ... > Trade Practices & Un-fair Competition > State Regulation > ScopeTorts > ... > Elements > Causation > General Over-viewTorts > ... > Elements > Causation > Causation inFact

HN33 To recover under the Texas DeceptiveTrade Practices--Consumer Protection Act, aplaintiff must show that a defendant’s actionswere the producing cause of actual damages.Tex. Bus. & Com. Code Ann. § 17.50(a). Thisshowing requires some evidence that the defen-dant’s act or omission was a cause in fact ofthe plaintiff’s injury. Under this standard, it isnot necessary to show that the harm was fore-seeable.

Torts > Business Torts > Fraud & Misrepresenta-tion > General Overview

HN34 Mere puffing statements are not action-able under §§ 17.46(b)(5) or 17.46 (b)(7) ofthe Texas Deceptive Trade Practices--Con-sumer Protection Act.

Civil Procedure > ... > Standards of Re-view > Substantial Evidence > General Overview

HN35 In conducting a no-evidence review, anappellate court must view the evidence in a lightthat tends to support the finding of the dis-puted fact and disregard all evidence and infer-ences to the contrary. If more than a scintillaof evidence exists, the evidence is legally suffi-cient to support the finding.

47 S.W.3d 486, *486; 2001 Tex. LEXIS 38, **1

Torts > ... > Types of Damages > Compensatory Dam-ages > General Overview

HN36 Recovery for lost profits does not re-quire that the loss be susceptible to exact calcu-lation. However, the injured party must domore than show that it suffered some lost prof-its. The loss amount must be shown by com-petent evidence with reasonable certainty. Thisis a fact-intensive determination. At a mini-mum, opinions or lost-profit estimates must bebased on objective facts, figures, or datafrom which the lost-profits amount may be as-certained.

Governments > Agriculture & Food > Product Promo-tionsTorts > Remedies > Damages > General Overview

HN37 Texas’ general rule for assessing dam-ages for crop loss is the market value of the lostpart of the crop, as measured at maturity, lessthe cost of harvesting and marketing the lostpart. The law does not demand perfect proofof damages for crop loss but liberally permits es-timates of crop value and probable yield, aswell as cultivating and marketing expenses.

Governments > Agriculture & Food > Distribution, Pro-cessing & StorageTorts > Business Torts > Fraud & Misrepresenta-tion > General Overview

HN38 See Tex. Bus. & Com. Code Ann. §17.42(a).

Contracts Law > ... > Sales of Goods > Rem-edies > General OverviewTorts > Business Torts > Fraud & Misrepresenta-tion > General Overview

HN39 A clause limiting recovery for breach ofwarranty is effective, even when brought un-der the Texas Deceptive Trade Practices--Con-sumer Protection Act, because the Act didnot create warranty claims. However, the samedoes not hold true for other claims under theAct.

Commercial Law (UCC) > Sales (Article 2) > Form,Formation & Readjustment > General OverviewComputer & Internet Law > Civil Actions > Dam-agesTorts > Remedies > Damages > General Overview

HN40 Past profits, coupled with other facts andcircumstances, may establish a lost-profitsamount with reasonable certainty. However,lack of a profit history does not, by itself, pre-clude a new business from recovering lost fu-ture profits. Rather, the focus is on whether dam-ages can be shown with reasonable certainty.This can be accomplished with a profit historyor some other objective data, such as futurecontracts, from which lost profits can be calcu-lated with reasonable certainty.

Contracts Law > Types of Contracts > Lease Agree-ments > General OverviewGovernments > Agriculture & Food > Distribution, Pro-cessing & StorageGovernments > Agriculture & Food > Product Promo-tionsTorts > Remedies > Damages > General Overview

HN41 The costs of harvesting and marketing acrop include additional lease payments, grain-elevator costs, and transportation charges. Har-vesting and marketing expenses can be liber-ally estimated.

Judges: JUSTICE BAKER delivered the opin-ion of the Court, in which CHIEF JUSTICEPHILLIPS, JUSTICE ENOCH, JUSTICE HAN-KINSON, JUSTICE O’NEILL, and JUSTICEJEFFERSON joined. JUSTICE ABBOTT filed adissenting opinion in which JUSTICEHECHT and JUSTICE OWEN joined.

Opinion by: James A. Baker

Opinion

[*490] This is a case of first impression in-volving [*491] the Texas Seed Arbitration Act.1 The Act requires that certain defective-seedclaims be submitted to arbitration as a prerequi-site to maintaining a legal action against the la-

1 Unless otherwise indicated, all references to ″the Act″ are to the Texas Seed Arbitration Act. See TEX. AGRIC. CODE §64.001-.007.

47 S.W.3d 486, *486; 2001 Tex. LEXIS 38, **1

beler. We must decide whether the timeliness re-quirement for submitting claims to arbitrationis jurisdictional under the Act. We conclude thatit is not, and that the evidence was legally suf-ficient to support the jury’s verdict on liabil-ity, causation, and damages. Accordingly, we af-firm the court of appeals’ judgment.

[**2] I. BACKGROUND

The Wilkinses began farming in 1989 and firstplanted grain in 1992. Most of their land isnonirrigated dryland. They purchased a Chero-kee-variety grain sorghum seed from HelenaChemical Company in 1992, 1993, and 1994.The Wilkinses claim that when they purchasedthis seed, they relied on Helena’s advertisingthat it had ″excellent dryland yield potential.″Helena also represented that the seed had a″good field tolerance″ to charcoal rot, a condi-tion that causes the grain’s stem to weaken and″fall down,″ reducing yield.

The 1992 crop had a good yield, but the 1993crop yield was much lower. The Wilkinses claimthat Helena’s agent blamed this low yield onthe seeds being planted too close together andthat the agent recommended planting Cherokeeseed on the entire tract with increased spac-ing between seeds. The Wilkinses followed thisadvice in 1994 with no increase in yield. Hel-ena claims that insufficient rainfall and soilmoisture depletion brought about by theWilkinses’ planting cotton on part of the prop-erty in 1993 caused the reduced yield.

In February 1995, the Wilkinses sued Helena al-leging Deceptive Trade Practices--ConsumerProtection Act (DTPA) [**3] violations, breachof express and implied warranties, and fraud.In March, Helena filed a plea in abatement andmotion to compel nonbinding arbitration un-der the Act. In April, the trial court granted Hel-ena’s motion and abated the proceedings. Fif-teen months later, the Wilkinses submitted theirclaims to the Texas Plant and Seed Board forarbitration. The Board declined to arbitrate be-cause the crops were no longer in ″field con-dition″ and thus the Board could not inspect thecrops.

The trial court lifted the abatement and thecase proceeded to trial. The jury found for the

Wilkinses on all claims except fraud. It did notfind that Helena had acted knowingly. Itawarded the Wilkinses $ 360,000 in damages.The trial court also awarded prejudgment inter-est from the date the Board declined to arbi-trate. Helena and the Wilkinses appealed.

The court of appeals held that Helena had effec-tively disclaimed any warranties. HelenaChem. Co. v. Wilkins, 18 S.W.3d 744, 758(Tex. App. San Antonio 2000). But it affirmedthe judgment on the DTPA claims, holdingthat the Board’s refusal to arbitrate theWilkinses’ claims did not jurisdictionally bartheir suit. 18 S.W.3d at 751-52. It also held thatthe evidence was legally [**4] and factuallysufficient to support the jury’s verdict on causa-tion, liability, and damages. 18 S.W.3d at 754-59. Finally, in response to the Wilkinses’ cross-appeal, the court held that the trial courtproperly calculated prejudgment interest. 18S.W.3d at 760. Only Helena petitioned this Courtfor review.

II. TEXAS SEED ARBITRATION ACT

Helena argues that the trial court did not have ju-risdiction over the Wilkinses’ [*492] claimsbecause the Act requires that all defective-seedclaims first be timely submitted to nonbind-ing arbitration so the Board may effectively in-spect the plants under field conditions. Thus,Helena argues, the Wilkinses’ delay in submit-ting their claims for arbitration--whichcaused the Board to refuse to arbitrate--jurisdictionally barred the claims.

In response, the Wilkinses argue that submit-ting their claims to arbitration is all the Act re-quires. They posit that Helena’s interpretationwould render other statutory provisions mean-ingless and note that the Act does not autho-rize dismissal as a remedy under its arbitrationprocedures. Thus, the Wilkinses argue, thecourt of appeals correctly held that once theysubmitted their [**5] claims to arbitration un-der the Act, the trial court had jurisdiction tohear the claims regardless of whether arbitra-tion actually occurred.

A. APPLICABLE LAW

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1. Texas Seed Arbitration Act

HN1 The Legislature enacted the Act in 1989to ″provide[] for an unbiased third party inves-tigation by the State Seed and Plant Board ofthe Texas Department of Agriculture of com-plaints concerning seed performance.″HOUSE COMM. ON AGRICULTURE ANDLIVESTOCK, BILL ANALYSIS, Tex. S.B. 64,71st Leg., R.S. (1989). Pertinent to this ap-peal, the Act provides:

§ 64.002. Requirement of Arbitration

HN2 (a) When a purchaser of seed designedfor planting claims to have been damaged by thefailure of the seed to produce or perform as rep-resented by warranty or by the label re-quired to be attached to the seed under this sub-title or as a result of negligence, the purchasermust submit the claim to arbitration as pro-vided by this chapter as a prerequisite to the ex-ercise of the purchaser’s right to maintain a le-gal action against the labeler . . . .

TEX. AGRIC. CODE § 64.002 (a) (emphasisadded).

§ 64.004. Effect of Arbitration

HN3 In [**6] any litigation involving a com-plaint that has been the subject of arbitration un-der this chapter, any party may introduce the re-port of arbitration as evidence of the factsfound in the report, and the court may givesuch weight to the arbitration board’s findingsof fact, conclusions of law, and recommenda-tions as to damages and costs as the court de-termines advisable. The court may also take intoaccount any findings of the board of arbitra-tion with respect to the failure of any party to co-operate in the arbitration proceedings, includ-ing any finding as to the effect of delay in filingthe arbitration claim or the arbitrationboard’s ability to determine the facts of thecase.

TEX. AGRIC. CODE § 64.004 (emphasisadded).

§ 64.005. Arbitration Board

HN4 (b) As a board of arbitration, the StateSeed and Plant Board shall conduct arbitrationas provided by this chapter . . . .

TEX. AGRIC. CODE § 64.005 (b) (emphasisadded).

§ 64.006. Arbitration Procedures

HN5 (a) A purchaser may begin arbitration byfiling with the commissioner a sworn com-plaint and a filing fee, as provided by department[**7] rule. . . . Except in the case of seed

that has not been planted, the complaint must befiled within the time necessary to permit effec-tive inspection of the plants under field con-ditions.

. . . .

[*493] (c) The commissioner shall refer thecomplaint and the answer to the arbitration boardfor investigation, findings, and recommenda-tions.

(d) On referral of the complaint for investiga-tion, the arbitration board shall make a promptand full investigation of the matters com-plained of and report its findings and recommen-dations to the commissioner not later than the60th day after the date of the referral, or be-fore a later date determined by the parties.

(e) The report of the arbitration board shall in-clude findings of fact, conclusions of law,and recommendations as to costs, if any . . . .

. . . .

(h) The arbitration board shall consider anyfield inspection or other data submitted by ei-ther party in its report and recommendation.

TEX. AGRIC. CODE § 64.006 (emphasisadded).

2. Statutory Construction

HN6 We must construe statutes as written and,if possible, ascertain legislative intent fromthe statute’s language. Morrison v. Chan, 699S.W.2d 205, 208 (Tex. 1985). [**8] Even whena statute is not ambiguous on its face, we can

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consider other factors to determine the Legisla-ture’s intent, including: the object sought tobe obtained; the circumstances of the statute’senactment; the legislative history; the commonlaw or former statutory provisions, includinglaws on the same or similar subjects; the conse-quences of a particular construction; adminis-trative construction of the statute; and the title,preamble, and emergency provision. TEX.GOV’T CODE § 311.023; Ken Petroleum Corp.v. Questor Drilling Corp., 24 S.W.3d 344,350 (Tex. 2000).

Additionally, HN7 we must always considerthe statute as a whole rather than its isolated pro-visions. Morrison, 699 S.W.2d at 208. Weshould not give one provision a meaning outof harmony or inconsistent with other provi-sions, although it might be susceptible to such aconstruction standing alone. Barr v. Bernhard,562 S.W.2d 844, 849 (Tex. 1978). We must pre-sume that the Legislature intends an entire stat-ute to be effective and that a just and reason-able result is intended. TEX. GOV’T CODE §311.021(2),(3).HN8

When [**9] used in a statute, the term ″must″creates or recognizes a condition precedent.TEX. GOV’T CODE § 311.016(3). While Texascourts have not interpreted ″must″ as often as″shall,″ both terms are generally recognized asmandatory, creating a duty or obligation. See-TEX. GOV’T CODE § 311.016(2), (3); Wright v.Ector County Indep. Sch. Dist., 867 S.W.2d863, 868 (Tex. App.--El Paso 1993, no writ)(″The ordinary meaning of ’shall’ or ’must’ isof a mandatory effect.″); Inwood N. Homeown-ers’ Ass’n, Inc. v. Meier, 625 S.W.2d 742,743 (Tex. Civ. App.--Houston [1st Dist.] 1981,no writ) (same); Mitchell v. Hancock, 196S.W. 694, 700 (Tex. Civ. App.--Fort Worth 1917,no writ) (same). The word ″’must’ is given amandatory meaning when followed by a non-compliance penalty.″ Harris County Ap-praisal Dist. v. Consolidated Capital Props. IV,795 S.W.2d 39, 41 (Tex. App.--Amarillo1990, writ denied). However, we have held lan-guage that appears to impose a mandatoryduty to be only directory when this interpreta-tion is most consistent with the Legislature’s in-tent. E.g., Barshop v. Medina County Under-

ground Water Conservation Dist., 925 S.W.2d618, 629 (Tex. 1996); [**10] Lewis v. Jackson-ville Bldg. & Loan Ass’n, 540 S.W.2d 307,310 (Tex. 1976); [*494] Thomas v. Groebl, 147Tex. 70, 212 S.W.2d 625, 630-31 (Tex. 1948).

HN9 To determine whether the Legislature in-tended a provision to be mandatory or direc-tory, we consider the plain meaning of the wordsused, as well as the entire act, its nature and ob-ject, and the consequences that would followfrom each construction. Albertson’s, Inc. v. Sin-clair, 984 S.W.2d 958, 961 (Tex. 1999); Chish-olm v. Bewley Mills, 155 Tex. 400, 287S.W.2d 943, 945 (Tex. 1956). HN10 Even if astatutory requirement is mandatory, this doesnot mean that compliance is necessarily jurisdic-tional. Sinclair, 984 S.W.2d at 961; Hines v.Hash, 843 S.W.2d 464, 467 (Tex. 1992);Schepps v. Presbyterian Hosp. of Dallas, 652S.W.2d 934, 938 (Tex. 1983). HN11 When astatute is silent about the consequences of non-compliance, we look to the statute’s purposeto determine the proper consequences. Sinclair,984 S.W.2d at 961; Schepps, 652 S.W.2d at 937-38; Chisholm, 287 S.W.2d at 945. [**11] B.ANALYSIS

The parties agree that if the Wilkinses had notsubmitted their claims to arbitration after thetrial court abated the proceedings, any claimssubject to the Act would be jurisdictionallybarred. See TEX. AGRIC. CODE § 64.002(a)(″HN12 The purchaser must submit the claim toarbitration . . . as a prerequisite to the exer-cise of the purchaser’s right to maintain a legalaction against the labeler.″); see also Hines,843 S.W.2d at 469 (holding failure to performmandatory but nonjurisdictional act while suit isabated for that purpose results in dismissal).However, because the Wilkinses did submit theirclaims to the Board, the only issue is whethertheir delay in doing so, and the Board’s subse-quent refusal to arbitrate, deprived the trialcourt of jurisdiction.

Helena argues that section 64.006(a)’s require-ment that a complaint be ″filed within thetime necessary to permit effective inspection ofthe plants under field conditions″ is manda-tory and jurisdictional. The Wilkinses acknowl-

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edge this statutory timing requirement, but ar-gue that submission is the mandatory act and thattimeliness is merely a factor the trial [**12]court may consider. We agree with theWilkinses’ interpretation.

HN13 Section 64.006(a) states that a purchas-er’s complaint ″must″ be filed within the timenecessary to permit effective inspection underfield conditions. The word ″’must’ creates orrecognizes a condition precedent.″ TEX.GOV’T CODE § 311.016(3). The Legislaturehas instructed us to apply this definition unlessits context ″necessarily requires a differentconstruction.″ TEX. GOV’T CODE § 311.016.

The problem with Helena’s position that delay insubmitting a claim to arbitration creates a ju-risdictional bar is that we cannot read section64.006(a) in a vacuum. Read in context, Hel-ena’s interpretation renders other provisionsmeaningless. In fact, section 64.004 ex-pressly contemplates that a claim may be arbi-trated and continue on to trial even when a de-lay in submission to arbitration prevents theBoard from thoroughly investigating theclaim. It provides:

HN14 In any litigation involving a complaintthat has been the subject of arbitration underthis chapter . . . the court may also take intoaccount any findings of the board of arbitrationwith respect to the failure [**13] of anyparty to cooperate . . . including any finding asto the effect of delay in filing the arbitrationclaim or the arbitration board’s ability to deter-mine the facts of the case.

TEX. AGRIC. CODE § 64.004 (emphasisadded). Accepting Helena’s argument that sec-tion 64.006(a)’s timing requirement is[*495] jurisdictional renders section 64.004

meaningless because in any case ″involving acomplaint that has been the subject of arbitra-tion under this chapter,″ there could not be a″finding as to the effect of delay in filing . . . orthe arbitration board’s ability to determine thefacts of the case.″

Actually, the Act’s language and purpose dem-onstrate that the Legislature simply did notcontemplate the situation presented here--a sub-

mission to arbitration where the Board then re-fuses to arbitrate. Rather, the Legislature cre-ated this arbitration scheme to provide analternate forum for farmers to initially submitclaims, not as a mechanism to preclude farm-ers’ suits altogether. See HOUSE COMM.ON AGRICULTURE AND LIVESTOCK, BILLANALYSIS, Tex. S.B. 64, 71st Leg., R.S.(1989) (explaining that one reason this Act waspassed was that ″farmers are often [**14] re-luctant to litigate″ seed disputes).

In addition to the overall statutory objective,we have historically looked to two factors to de-termine if the Legislature intended a provi-sion to be jurisdictional: (1) the presence or ab-sence of specific consequences fornoncompliance, Sinclair, 984 S.W.2d at 961-62, and (2) the consequences that result fromeach possible interpretation. Barshop, 925S.W.2d at 629. Applying these factors supportsour interpretation that delay in submittingclaims is not jurisdictional.

HN15 To determine whether a timing provi-sion is mandatory, we first look to whether thestatute contains a noncompliance penalty. If aprovision requires that an act be performedwithin a certain time without any words re-straining the act’s performance after that time,the timing provision is usually directory.Lewis, 540 S.W.2d at 310; Markowsky v. New-man, 134 Tex. 440, 136 S.W.2d 808, 812(Tex. 1940). Here, HN16 the Act states that apurchaser’s complaint must be filed ″within thetime necessary to permit effective inspectionof the plants under field conditions.″ TEX. AG-RIC. CODE § 64.006(a). [**15] However,the Act has no corresponding provision dictat-ing dismissal for noncompliance. State v. $435,000, 842 S.W.2d 642, 644 (Tex. 1992)(″If the Legislature had intended dismissal tobe the consequence of a failure to hear a forfei-ture case within the prescribed period, itcould easily have said so.″); see also Sinclair,984 S.W.2d at 962 (″That section 410.253 doesnot dictate the consequence of noncomplianceis significant when considering the entire stat-ute.″). To the contrary, the Act expressly pro-vides nonjurisdictional consequences by allow-ing the Board to make findings about any

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delay and allowing the trial court to considerthese findings. See TEX. AGRIC. CODE §64.004. Thus, we conclude the Act’s silenceabout dismissal, coupled with its provisionfor other consequences, weighs in favor of anonjurisdictional interpretation.

HN17 When deciding whether the Legislatureintended a particular provision to be jurisdic-tional, we must also consider the conse-quences that result from each possible construc-tion. Chisholm, 287 S.W.2d at 945-46. UnderHelena’s interpretation, a delay in submitting aclaim [**16] to arbitration precludes any con-sideration of the claim--by the Board or a trialcourt. Because the Board’s arbitration is non-binding and the trial court is not required to con-sider the Board’s findings, we conclude thatHelena’s jurisdictional interpretation of section64.006’s timing requirement leads to an ab-surd result. See Barshop, 925 S.W.2d at 629.

Helena urges that our adopting a nonjurisdic-tional interpretation allows purchasers to by-pass the Act and thwart its underlying pur-pose of providing for an unbiased, independentBoard investigation. See HOUSE COMM.ON AGRICULTURE [*496] AND LIVE-STOCK, BILL ANALYSIS, Tex. S.B. 64, 71stLeg., R.S. (1989). We disagree.

HN18 The Act permits the Board to indepen-dently investigate and assess the purchaser’sclaims. TEX. AGRIC. CODE § 64.006(d).But, while the Act requires the Board to con-sider any field inspection or other data eitherparty submits, nowhere does it require theBoard itself to conduct a field inspection; nordoes it expressly mention the Board conduct-ing such an inspection. See TEX. AGRIC.CODE § 64.006(f)-(h). Instead, HN19 by theAct’s express terms, [**17] the Board can carryout its investigation in a number of ways thatdo not necessarily require it to conduct its ownfield inspection. For example, the Act autho-rizes the Board to delegate all or any part of itsinvestigation to its members. TEX. AGRIC.CODE § 64.006(g). And the Board may growrepresentative samples, conduct hearings, andexamine the parties. TEX. AGRIC. CODE §64.006(f). In fact, here both parties’ experts con-

ducted field inspections that they could havesubmitted to the Board to aid it in fulfilling itsduties. See TEX. AGRIC. CODE § 64.006(h)(″The arbitration board shall consider any fieldinspection or other data submitted by eitherparty.″) (emphasis added). Thus, because theBoard can conduct an investigation despite a de-lay in submission to arbitration, concludingthat section 64.006(a)’s timing requirement isnonjurisdictional does not thwart the Act’s pur-pose of providing for a Board investigation.See Hines, 843 S.W.2d at 469 (holding stat-ute’s purpose could be furthered without juris-dictional interpretation of mandatory timingrequirement).

Further, [**18] our interpretation does not ren-der a delay in submitting a claim to arbitra-tion without consequence. Indeed, HN20 if apurchaser does not submit a claim in time for theBoard or the seller to conduct an effectivefield inspection, it does so at its own peril. TheBoard may make findings adverse to the pur-chaser on this basis. TEX. AGRIC. CODE §64.004. If the purchaser then sues, theBoard’s findings and recommendations are ad-missible, and the Act expressly authorizesthe court to both ″give such weight to the arbi-tration board’s findings of fact, conclusionsof law, and recommendations as to damages andcosts as the court determines advisable″ and″take into account any findings . . . with re-spect to the failure of any party to cooperate inthe arbitration proceedings, including any find-ing as to the effect of delay in filing the arbitra-tion claim.″ TEX. AGRIC. CODE § 64.004.We conclude that these consequences--not thecomplete deprival of any right to have the claimsheard in any forum--are the consequences theLegislature contemplated under the Act.

The dissent disagrees with this conclusion, as-serting that the Act absolutely [**19] fore-closes a purchaser’s action if the purchaser doesnot comply with section 64.006(a)’s timing re-quirement. 47 S.W.3d 486, 2001 Tex. LEXIS38, *63. The dissent notes section 64.006’s lan-guage that the complaint ″must″ be filedwithin the time necessary to permit effectivecrop inspection. 47 S.W.3d 486, 2001 Tex. LEXIS38, *50-51. It then reconciles this language

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with section 64.004 by interpreting section64.004 to permit Board findings about a pur-chaser’s delay only while the crops are still inthe ground. 47 S.W.3d 486, 2001 Tex. LEXIS 38,*55-56. It explains that ″[a] purchaser couldcertainly delay filing an arbitration complaint formany months yet still file while the seeds areunder field conditions.″ 47 S.W.3d 486, 2001Tex. LEXIS 38, *55-56. Thus, it reasons, sub-mitting a claim while the seeds are in the ground,but after a hot summer season, could ″affectthe Board’s investigation.″ 47 S.W.3d 486, 2001Tex. LEXIS 38, *56.

However, while purporting to apply a plain-language analysis to section [*497] 64.006(a),the dissent glosses over the section’s actual lan-guage and ignores the maxim that HN21 wemust presume that every word in a statute is in-cluded purposefully. See Cameron v. Terrell& Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981). First, the dissent’s interpretation [**20]assumes the Board itself must conduct thefield inspection referenced in section 64.006(a).The Act’s text does not support this assump-tion. Instead, HN22 the Act provides that a com-plaint must be filed in time to ″permit effec-tive inspection of the plants under fieldconditions,″ TEX. AGRIC. CODE § 64.006(a),thus permitting the parties to inspect underfield conditions and provide their reports to theBoard. TEX. AGRIC. CODE § 64.006(h). Sec-ond, the dissent’s interpretation presumes thatany claim submitted while crops are still inthe ground will satisfy section 64.006(a)’s lan-guage. 47 S.W.3d 486, 2001 Tex. LEXIS 38.However, section 64.006 does not only requirethat a claim be submitted while the crops areavailable for inspection ″under field condi-tions.″ Rather, it states a claim must be filedin time to permit an ″effective inspection of theplants under field conditions.″ TEX. AGRIC.CODE § 64.006(a) (emphasis added). We mustpresume the word ″effective″ has meaning.See Cameron, 618 S.W.2d at 540. Thus, underthe dissent’s interpretation of 64.006(a), anyclaim brought while the crops are [**21] in theground but after an effective inspection couldbe accomplished would already be barred un-

der 64.006(a)--rendering section 64.004’s provi-sion for the Board to make findings about de-lay in submitting the claim meaningless.

The dissent also urges us to adopt the Florida Su-preme Court’s interpretation of a prior ver-sion of its Seed Act because our statute’s legis-lative history indicates that our statute wasmodeled in part after Florida’s. See Ferry-Morse Seed Co. v. Hitchcock, 426 So. 2d 958,961 (Fla. 1983) (holding Florida Seed Act’s ar-bitration submission timing requirement juris-dictional). There is only one reference to Floridain our Act’s bill analysis. The background sec-tion notes that ″for many years the state ofFlorida has used a method of arbitration withan unbiased third party investigation and opin-ion″ and that ″the American Seed Trade Asso-ciation has recommended to each of its mem-ber states that they work to pass measuressimilar to Florida’s.″ HOUSE COMM. ON AG-RICULTURE AND LIVESTOCK, BILLANALYSIS, Tex. S.B. 64, 71st Leg., R.S.(1989).

We recognize that HN23 when a Texas statuteis modeled after another jurisdiction’s, thatjurisdiction’s [**22] interpretation before theLegislature enacts our statute may be givenweight. City of Garland v. Dallas MorningNews, 22 S.W.3d 351, 360 (Tex. 2000). How-ever, when the Legislature looks to another ju-risdiction’s statute, but modifies rather thanadopts some of its provisions, it does so purpose-fully. See Sharifi v. Young Bros., Inc., 835S.W.2d 221, 223 (Tex. App.--Waco 1992, writdenied).

When the Legislature enacted the Texas Act,the Florida Seed Act provided that a purchasermust submit its claim to arbitration ″withinsuch time as to permit inspection of the crops,plants, or trees by the seed investigation andconciliation council or its representatives and bythe dealer from whom the deed was pur-chased.″ FLA. STAT. ANN. § 578.026(1)(a)(emphasis added). In Ferry-Morse Seed Co., thecase upon which the dissent relies, theFlorida Supreme Court interpreted a prior ver-sion’s timing requirement to be jurisdic-tional. 426 So. 2d at 961. This prior version re-quired a claim be filed ″within ten days after

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the defect or violation becomes apparent.″ SeeFerry-Morse Seed Co., 426 So. 2d at 960.There are two important [**23] differences be-tween the Texas [*498] and Florida Acts.First, the Florida Act’s current version speci-fies that the Board and the seed seller must bothbe able to conduct an independent field inspec-tion. The Texas Act has no such language.Second, and more significant, neither versionof Florida’s Act provides for the Board to makefindings about the effect of the purchaser’s de-lay in submitting a claim to arbitration as sec-tion 64.004 of the Texas Act does. Thus, whilewe might be inclined to adopt Florida’s inter-pretation that timely submitting to arbitration isjurisdictional if its statute were identical toours, we are not bound to interpret one similarprovision of our Act in a way that conflictswith other provisions that differ from Florida’sstatute.

Finally, while we base our interpretation on theAct’s language and the Legislature’s intent,we note that one other court has had occasionto interpret its Seed Act’s similar arbitration pro-visions. Illinois’ Seed Act provides:

A purchaser of seed cannot maintain a civil ac-tion against the seller for failure of the seedto produce or perform (i) as represented by a la-bel attached to the seed or furnished underthe Illinois [**24] Seed Law, (ii) as repre-sented by warranty, or (iii) because of negli-gence, unless the buyer has first submitted theclaim to arbitration.

. . . .

Except in case of seed that has not beenplanted, the claim shall be filed within a timethat will permit effective inspection of the plantsunder field conditions and in no case laterthan 90 days after completion of harvest.701ILL. COMP. STAT. 25/10, 25/20 (emphasisadded). In Presley v. P&S Grain Co., the Illi-nois court of appeals held this timing require-ment to be directory rather than mandatory. 289Ill. App. 3d 453, 683 N.E.2d 901, 910, 225Ill. Dec. 398 (Ill. App. Ct. 1997). It reasoned,as we have here, that the statute’s failure to pro-

vide for dismissal as a consequence for noncom-pliance with its arbitration provisions weighsin favor of a directory interpretation. Presley,683 N.E.2d at 909. Likewise, it concluded thatinterpreting the nonbinding arbitration proce-dures as jurisdictional would lead to an absurdresult. Presley, 683 N.E.2d at 909.

We agree with the Florida Supreme Court’s ob-servation that seed arbitration laws are ″estab-lished to protect the farmer.″ Ferry-Morse SeedCo., 426 So. 2d at 961. [**25] Thus,HN24 when, as here, we are faced with twocompeting interpretations, we must choose theone most harmonious with the Act’s objec-tives and other provisions. Accordingly, we con-clude that while submission to arbitration un-der the Act is mandatory if not waived by theseller, the Act’s timing requirement is not.See Hines, 843 S.W.2d at 469; $ 435,000, 842S.W.2d at 644. Because the Wilkinses submit-ted their claims to arbitration and thus com-plied with the Act’s mandatory requirements,the trial court correctly concluded that it had ju-risdiction over their claims.

III. EXPERT TESTIMONY

Helena argues that the trial court abused its dis-cretion by admitting the Wilkinses’ expert’stestimony. The expert, Dr. Pleunneke, testifiedthat in his opinion, Cherokee seed is not appro-priate for dryland farming and thus did not per-form as represented. Helena contends that Ple-unneke lacked the required qualifications andthat his testimony lacked the ″indicia of reli-ability″ required for admission. The court of ap-peals held the trial court did not abuse its dis-cretion by admitting Pleunneke’s testimony. 18S.W.3d at 754. We agree with the [**26]court of appeals.

[*499] A. APPLICABLE LAW

HN25 If scientific, technical, or other special-ized knowledge will assist the trier of fact to un-derstand the evidence or to determine a factin issue, a witness qualified as an expert byknowledge, skill, experience, training, or educa-tion may testify thereto in the form of opin-

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ion or otherwise. TEX. R. EVID. 702. Other-wise admissible opinion testimony is notobjectionable because it embraces an ultimate is-sue of fact. TEX. R. EVID. 704.

HN26 A two-part test governs whether experttestimony is admissible: (1) the expert must bequalified; and (2) the testimony must be rel-evant and be based on a reliable foundation. E.I.du Pont de Nemours & Co. v. Robinson, 923S.W.2d 549, 556 (Tex. 1995). The trial courtmakes the initial determination about whetherthe expert and the proffered testimony meetthese requirements. Robinson, 923 S.W.2d at556. HN27 The trial court has broad discretionto determine admissibility, and we will re-verse only if there is an abuse of that discre-tion. Robinson, 923 S.W.2d at 558.

HN28 In deciding if an expert is qualified,trial courts ″must ensure that those who pur-port to [**27] be experts truly have expertiseconcerning the actual subject about which theyare offering an opinion.″ Gammill v. Jack Wil-liams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex.1998) (quoting Broders v. Heise, 924 S.W.2d148, 152 (Tex. 1996)). To gauge reliability, wehave explained:

Daubert and Rule 702 demand that the districtcourt evaluate the methods, analysis, and prin-ciples relied upon in reaching the opinion. Thecourt should ensure that the opinion com-ports with applicable professional standards out-side the courtroom and that it will have a reli-able basis in the knowledge and experienceof the discipline.Gamill, 972 S.W.2d at 725-26(quotations omitted). In Robinson, we identi-fied six nonexclusive factors to determinewhether an expert’s testimony is reliable andthus admissible. Robinson, 923 S.W.2d at 557.But in Gammill we recognized that the Rob-inson factors may not apply to certain testi-mony. Gammill, 972 S.W.2d at 726. In those in-stances, HN29 there still must be some basisfor the opinion offered to show its reliability,and, ultimately, the trial court must determine[**28] how to assess reliability. Gammill,

972 S.W.2d at 726. If an expert relies upon un-reliable foundational data, any opinion drawnfrom that data is likewise unreliable. Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,714 (Tex. 1997). Further, an expert’s testi-mony is unreliable even when the underlyingdata is sound if the expert’s methodology isflawed. Havner, 953 S.W.2d at 714.B.ANALYSIS1. Qualifications

Pleunneke testified that he grew up on a ranch.He earned a bachelor’s degree in wildlife man-agement from Texas A&M University. He thenworked in a bank’s trust department manag-ing farm and ranch lands in Texas and Louisi-ana. During this time he worked with manydifferent types of crops, including grain sor-ghum. He then returned to school and finisheda doctorate in plant physiology. Afterwards,he worked with crops for Mississippi State Uni-versity’s Agronomy and Biochemistry Depart-ment. At this job, he conducted crop-variety test-ing, predominantly on soybean crops, and hewas ″quite familiar with setting up tests and soforth and seeing which varieties are best.″For the past twenty years he [**29] has workedin Texas as a plant scientist and consultant.He characterized some of his functions [*500]as ″working on different problems related toplant science, science pertaining to the physiol-ogy of plants, malnutrition, the way the envi-ronment affects them and so forth.″ In fact, theWilkinses initially hired him, not as a litiga-tion expert, but as a consultant to help them iden-tify the source of their crop problems.

Helena notes that Pleunneke is not a plant pa-thologist and argues that his testimony does notestablish he is an expert about charcoal rot.However, this argument incorrectly frames theissue. The Wilkinses allege Helena misrepre-sented Cherokee seed’s fitness for use in a non-irrigated environment. Accordingly, the fac-tual issue is not solely whether Cherokee issusceptible to charcoal rot. Also at issue iswhether Cherokee is particularly suited for dry-land farming as Helena represented.

The causation evidence in this case included:seed performance trial results, the Wilkinses’farm’s current and past performance, the cur-rent and past performance of the Wilkinses’neighbor’s farm, and weather and soil statis-tics. In response to this evidence, Helena con-

47 S.W.3d 486, *499; 2001 Tex. LEXIS 38, **26

tended that environmental [**30] factors, notCherokee seed’s drought intolerance, led to theWilkinses’ poor crop. Thus, to determinewhether Pleunneke is a qualified expert, thequestion is whether Pleunneke has scientific,technical, or other specialized knowledge thatwould assist the jury to understand this evi-dence and determine if Cherokee seed is suit-able for dryland farming as represented. SeeTEX. R. EVID. 702.

We conclude that Pleunneke’s knowledgewould aid the jury in understanding the evi-dence. Several grain performance trial resultswere entered into evidence. Pleunneke has ex-perience conducting crop trials, and, presum-ably, experience interpreting and comparingthose results. Also, as a plant-science consul-tant, he works on ″different problems relatedto plant science, science pertaining to the physi-ology of plants, malnutrition, the way the en-vironment affects them and so forth.″ BecauseHelena contends environmental factorscaused the Wilkinses’ crop failure rather thanCherokee seed’s drought intolerance, Pleun-neke’s experience identifying environmentalfactors affecting crops could have been helpfulto the jury. Accordingly, we conclude thatthe court of appeals correctly held that the trial[**31] court’s finding Pleunneke qualified

was not an abuse of discretion.

2. Reliability

Helena also contends that Pleunneke’s testi-mony is unreliable because he is not qualifiedto testify about charcoal rot and because he doesnot state the basis and the methodology be-hind his opinion. Again, Helena fails to recog-nize that the issue here is whether Cherokeeseed is suitable for dryland farming as Helenarepresented. And it ignores the numerous basesunderlying Pleunneke’s opinion and his quali-fications.

Pleunneke testified that, in forming his opin-ions, he relied on a number of things: a physi-cal inspection of the Wilkinses’ Cherokeecrop; photographs and videotape of theWilkinses’ field; samples of the Wilkinses’ soiland plants; samples of the Wilkinses’ neigh-

bors’ soil and plants; lab analysis results fromhis field samples; South Texas rainfall statisticsduring the relevant period; Texas A&M grain-sorghum trials; Texas A&M grain-sorghum lit-erature; publications by Dr. Fredrickson, aTexas A&M plant pathologist who is a grain-sorghum expert; Helena’s soil and plant samplesand analyses; and Helena’s marketing litera-ture. Helena does not argue that this founda-tional data [**32] underlying Pleunneke’s opin-ion testimony is unreliable.

[*501] Moreover, Pleunneke has twenty yearsexperience as a plant scientist and conductingand interpreting crop trials. While testifying,Pleunneke explained the results of severalgrain trials, why he found those to be signifi-cant, and how they supported his opinions. Healso explained the other factors that contrib-uted to his opinion, and why they were signifi-cant to his conclusions. These other factors in-cluded weather and weed-control reports,disease publications, testing, and comparisonwith crops adjacent to the Wilkinses’ farm. Thus,Pleunneke’s experience, coupled with his thor-ough testimony about the methodology he em-ployed, demonstrate that the opinions he drewfrom the underlying data are reliable. SeeGammill, 972 S.W.2d at 726. Thus, we con-clude that the court of appeals correctly held thatthe trial court did not abuse its discretion by ad-mitting Pleunneke’s testimony.

IV. DTPA CLAIMS

Helena argues that the Wilkinses’ failure totimely submit their claims to arbitration underthe Act also precludes the trial court from con-sidering their DTPA claims. In the alternative,it argues that there [**33] is no evidence to sup-port the jury’s DTPA liability and causationfindings. Specifically, Helena argues that anyrepresentations it made amounted to nonaction-able puffing.

A. RELATIONSHIP BETWEEN THEDTPA AND THE TEXAS SEED ARBITRA-TION ACT

Helena argues that if the Act governs any partof a suit, then all the purchaser’s claims must be

47 S.W.3d 486, *500; 2001 Tex. LEXIS 38, **29

arbitrated, regardless of the theory of recovery.The dissent agrees, concluding that all theWilkinses’ theories are ″factually intertwined,″and thus that their DTPA claims cannot pro-vide an alternative basis for the trial court’sjudgment. Because we conclude that theWilkinses complied with the Act and hold thattheir delay in submitting their claims to arbi-tration did not bar their suit, determiningwhether the DTPA claims are within the Act’spurview is not necessary here.

B. EVIDENCE TO SUPPORT DTPA JURYQUESTIONS

The trial court submitted two DTPA questionsto the jury. The first question asked, in the dis-junctive, whether Helena had violated threeDTPA laundry-list provisions: sections17.46(b)(5) (misrepresentations about a prod-uct’s characteristics), 17.46(b)(7) (misrepresen-tations about a product’s standard, quality,[**34] or grade), or 17.46(b)(23) (failure to dis-close information with intent to induce an-other to enter transaction). SeeTEX. BUS. &COM. CODE § 17.46. The second questionasked only whether Helena violated section17.50(a)(3) (unconscionable action or courseof action). See TEX. BUS. & COM. CODE §17.50. The jury answered both questions ″yes.″

Helena argues that there is no evidence to sup-port the jury’s answers. Specifically, it arguesthat any representations made to the Wilkinsesamounted to nonactionable puffing and thatthere is no causation evidence. The court of ap-peals held there was some evidence to supportthe jury’s answers to both questions. 18S.W.3d at 755-57. We agree with the court of ap-peals.

1. Applicable Law

HN30 The DTPA prohibits ″false, misleading,or deceptive acts or practices in the conduct ofany trade or commerce.″ TEX. BUS. & COM.CODE § 17.46(a). HN31 Section 17.46(b) is alaundry list of specifically prohibited acts. Sec-tions 17.46(b)(5) and 17.46(b)(7) prohibit ″false,misleading, or deceptive acts or practices in-cluding . . . representing that [**35] goods and

services have [*502] . . . characteristics, ingre-dients, uses, [or] benefits . . . which they donot have″ and ″representing that goods or ser-vices are of a particular standard, quality, orgrade . . . if they are of another.″ Section17.46(b)(23) prohibits ″the failure to disclose in-formation concerning goods or services whichwas known at the time of the transaction if suchfailure to disclose such information was in-tended to induce the consumer into a transac-tion into which the consumer would not have en-tered had the information been disclosed.″Section 17.50 provides the remedy for viola-tions of the laundry-list provisions of 17.46(b)and for ″any unconscionable action orcourse of action by any person.″ Actionable rep-resentations may be oral or written. HedleyFeedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826,838 (Tex. App.--Amarillo 1993, writ denied).HN32 A party need not prove intent to make amisrepresentation under sections 17.46(b)(5)or 17.46(b)(7)--making the false representationis itself actionable. Smith v. Baldwin, 611S.W.2d 611, 616-17 (Tex. 1980).

HN33 To recover under the DTPA, the plain-tiff must also show that the defendant’s actions[**36] were the ″producing cause″ of actual

damages. See TEX. BUS. & COM. CODE §17.50(a). This showing requires some evi-dence that the defendant’s act or omission wasa cause in fact of the plaintiff’s injury. Doev. Boys Clubs of Greater Dallas, Inc., 907S.W.2d 472, 481 (Tex. 1995). Under this stan-dard, it is not necessary to show that theharm was foreseeable. Boys Club of GreaterDallas, Inc., 907 S.W.2d at 481.

The DTPA does not mention ″puffing″ as a de-fense. However, this Court has recognizedthat HN34 ″mere puffing″ statements are not ac-tionable under sections 17.46(b)(5) or 17.46(b)(7). Pennington v. Singleton, 606 S.W.2d 682,687 (Tex. 1980). Neither this Court nor anycourt of appeals has extended the puffing de-fense to violations of sections 17.46(b)(23) (fail-ure to disclose) or 17.50(a)(3) (unconscio-nable conduct).

HN35 In conducting a no-evidence review, wemust view the evidence in a light that tends

47 S.W.3d 486, *501; 2001 Tex. LEXIS 38, **33

to support the finding of the disputed fact anddisregard all evidence and inferences to the con-trary. Weirich v. Weirich, 833 S.W.2d 942,945 (Tex. 1992). If more than a scintilla [**37]of evidence exists, the evidence is legally suf-ficient to support the finding. Browning-Ferris,Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993).2. Analysis

The Wilkinses offered the following evidenceto support their DTPA claims:

(1) Kenny Wilkins’ testimony that he read Hel-ena’s seed brochure (PX-25) before purchas-ing Cherokee seed and that he would not haveplanted Cherokee in 1993 and 1994 had thebrochure not represented Cherokee was a gooddryland variety.

(2) The PX-25 brochure’s description of Chero-kee seed as ″one of the most durable, top yield-ing hybrids″ with an ″outstanding disease tol-erance package.″

(3) The PX-25 brochure’s ″grain sorghumlineup″ chart stating that Cherokee seed has″good″ head exertion, ″very good″ standability,″excellent″ yield potential in drylands, andthat it is ″FD [field] tolerant″ to charcoal rot.

(4) Helena’s written representation that its sor-ghum hybrids ″constitute our best researchand development efforts,″ that Cherokee seedhas ″excellent weatherability,″ that Cherokeeseed is ″the tough performer,″ and that it has″the stamina and [*503] hardiness to with-stand the harsh conditions from the Texas coastalbend [**38] across the lower south to theCarolinas.″

(5) Testimony that the Wilkinses did not ex-pect a ″FD tolerant″ plant would be affected bycharcoal rot and that they understood ″toler-ant″ to mean that ″if there was an acceptablelevel of something out in the field it would betolerant to it.″

(6) The American Seed Association’s (ofwhich Helena is a member) definition of ″toler-ant″ as ″the ability of plants to endure a speci-fied pest or an adverse environmental condi-

tion, performing and producing in spite of thedisorder.″

(7) A Helena agent’s testimony that ″toleranceto charcoal rot is known to occur in grain sor-ghum. In this case the plant may develop a dis-ease but may escape the full development ofsymptoms and produce some level of harvest-able yield which it could not otherwise do in theabsence of the tolerance phenomenon.″

(8) The Wilkinses’ testimony that they reliedupon the Helena agent’s oral representations.

(9) Testimony indicating that it is reasonable andcustomary for farmers to rely on oral represen-tations and advice from seed companies’ rep-resentatives and that, in fact, the neighboringfarm’s owner also relies on advice from hisseed company representative.

(10) [**39] Another Helena agent’s represen-tations that Cherokee seed was a ″good dryland variety and that it would hold up well un-der the dry land conditions,″ and his recom-mendation that the Wilkinses plant Cherokeeseed.

(11) A Helena representative’s statement thatthe Wilkinses had planted ″too thick″ and thatif they would plant Cherokee on the whole lot,but with greater spacing, ″the plants will goahead and perform.″

Helena argues that its ″alleged misleading state-ments are not statements of ’fact,’ but consti-tute, if anything, nonactionable opinion or puff-ing.″ It relies extensively on Autohaus, Inc. v.Aguilar, where the court of appeals held that anautomobile salesman’s stating that Mercedesis the best-engineered automobile in the worldand ″joking″ that the car would ″probably″

only need to be brought in for oil changes ev-ery 7,500 miles was nonactionable puffing. 794S.W.2d 459, 464 (Tex. App.--Dallas 1990),writ denied per curiam, 800 S.W.2d 853 (Tex.1991). The court noted that these two sen-tences were ″the extent of the evidence pre-sented to show the misrepresentation by thesalesman.″ Aguilar, 794 S.W.2d at 464. It also[**40] noted that the terms ″probably″ and

″joked″ demonstrated the generality of the state-

47 S.W.3d 486, *502; 2001 Tex. LEXIS 38, **36

ments. Aguilar, 794 S.W.2d at 464.

Here, the Wilkinses’ evidence reflects specificrepresentations about Cherokee seed’s character-istics and specific representations about howthe Wilkinses’ crop in particular would per-form. We conclude some of the representationsin this case are much more specific thanthose in Aguilar and are more analogous to rep-resentations held actionable in other cases.See, e.g., Pennington, 606 S.W.2d at 687 (hold-ing representations that used boat and motorwere in ″excellent condition,″ ″perfect condi-tion,″ and ″just like new″ were actionable mis-representations about characteristics and ben-efits); Hedley Feedlot, Inc., 855 S.W.2d at 831,838-39 (holding cattle seller’s representationsto a buyer about ″the type of cattle, weight, pro-jected cost of feeding, the length of [*504]time on feed, and the projected gain of the cattle″

were actionable under the DTPA); Gold Kist,Inc. v. Massey, 609 S.W.2d 645, 646-47 (Tex.App.--Fort Worth 1980, no writ) (holding rep-resentations about seed-germination rate wereactionable [**41] under the DTPA). Thus,viewing the evidence in a light most favorableto the jury’s findings, we conclude that thereis some evidence of misrepresentations aboutCherokee seed’s characteristics, quality, andgrade amounting to more than mere puffing.

Helena also argues that there is no evidence thatits actions were the producing cause of theWilkinses’ injuries because the Wilkinses didnot exclude other possible causes for the cropfailure. Specifically, Helena contends thatthe Wilkinses depleted their soil by planting cot-ton the prior year.

The Wilkinses presented evidence about Chero-kee’s unsuitability for dryland farming. Thisevidence included their crop’s performance,their neighbor’s crop performance, several seedperformance trial results, and South Texas rain-fall statistics. The Wilkinses’ expert, Dr. Pleun-neke, testified that Cherokee seed does not pro-duce a good yield in a nonirrigated environment.

The Wilkinses also presented evidence exclud-ing other causes. The court of appeals sum-marized this evidence:

Wilkins explained that the cotton-grain rotationis required by the local crop-management of-fice; his neighbor rotated cotton and grain oncertain portions of his [**42] acreage with-out adverse effects; and the alleged ″over plant-ing″ occurred because the Wilkinses followedthe recommendations of Helena in planting their1993 crop.18 S.W.3d at 756. Thus, we con-clude the Wilkinses presented some evidenceof producing cause. In sum, there is some evi-dence to support a finding that Helena vio-lated sections 17.46(b)(5) and 17.46(b)(7). Thisfinding is sufficient to support the jury’s ver-dict. Thus, the court of appeals correctly heldthat there is some evidence of DTPA viola-tions and that Helena’s puffing defense did notdefeat liability under the DTPA.

V. DAMAGES

Finally, Helena argues that there is no evidenceto support the jury’s $ 360,000 damagesaward. The court of appeals held there was evi-dence to support this amount. 18 S.W.3d at759. We agree with the court of appeals.

A. APPLICABLE LAW

HN36 Recovery for lost profits does not re-quire that the loss be susceptible to exact calcu-lation. Texas Instruments, Inc. v. Teletron En-ergy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex.1994). However, the injured party must domore than show that it suffered some lost prof-its. Teletron Energy Mgmt., Inc., 877 S.W.2dat 279. [**43] The loss amount must be shownby competent evidence with reasonable cer-tainty. Szczepanik v. First S. Trust Co., 883S.W.2d 648, 649 (Tex. 1994); Holt Atherton In-dus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992). This is a fact-intensive determination.Heine, 835 S.W.2d at 84. At a minimum, opin-ions or lost-profit estimates must be based onobjective facts, figures, or data from which thelost-profits amount may be ascertained. Szc-zepanik, 883 S.W.2d at 649; Heine, 835 S.W.2dat 84.

HN37 Texas’ general rule for assessing dam-ages for crop loss is the market value of the lostpart of the crop, as measured at maturity, less

47 S.W.3d 486, *503; 2001 Tex. LEXIS 38, **40

the cost of harvesting and marketing the lostpart. International Harvester Co. v. Kesey, 507S.W.2d 195, 197 (Tex. 1974). The law doesnot demand perfect proof of damages for crop[*505] loss but liberally permits estimates of

crop value and probable yield, as well as cul-tivating and marketing expenses. InternationalHarvester Co., 507 S.W.2d at 197.B. ANALY-SIS

Helena argues that the Wilkinses’ damagesshould have been limited to the Cherokee[**44] seed’s purchase price. Helena relies

upon the ″limitation of liability and remedies″

clause printed on its invoices, delivery tick-ets, and seed label. The DTPA provides thatHN38 ″any waiver by a consumer of the provi-sions of this subchapter is contrary to publicpolicy and is unenforceable and void.″ TEX.BUS. & COM. CODE § 17.42(a). HN39 Wehave held that a clause limiting recovery forbreach of warranty is effective, even whenbrought under the DTPA, because the DTPA didnot create warranty claims. Southwestern BellTel. Co. v. FDP Corp., 811 S.W.2d 572, 576-77(Tex. 1991). However, the same does nothold true for other DTPA claims. FDP Corp.,811 S.W.2d at 576-77. Thus, Helena’s liability-limitation clauses cannot preclude theWilkinses’ lost-profit recovery for nonwarrantyrepresentations or unconscionability.

Alternatively, Helena argues that there is no evi-dence to support the jury’s damage award be-cause prior losses cannot establish lost profitsand because the Wilkinses did not prove theirdamages with reasonable certainty. Specifically,Helena argues that deducting government sub-sides and disaster relief from the Wilkinses’[**45] income results in a history of losses

rather than profits.

The Wilkinses first planted grain in 1992 andbrought this suit to recover for crop damagessustained in 1993 and 1994. Thus, they onlyhad one year to establish a profit history.

We have held that HN40 past profits, coupledwith other facts and circumstances, may estab-lish a lost-profits amount with reasonable cer-tainty. See Teletron Energy Mgmt., Inc., 877

S.W.2d at 279. However, lack of a profit his-tory does not, by itself, preclude a new busi-ness from recovering lost future profits. See,e.g., Orchid Software, Inc. v. Prentice-Hall, Inc.,804 S.W.2d 208, 211 (Tex. App.--Austin1991, writ denied). Rather, our focus is onwhether damages can be shown with reason-able certainty. E.g., Szczepanik, 883 S.W.2d at649. This can be accomplished with a profit his-tory or some other objective data, such as fu-ture contracts, from which lost profits can be cal-culated with reasonable certainty. See, e.g.,Szczepanik, 883 S.W.2d at 649; Allied Bank W.Loop v. C.B.D. & Assocs., Inc., 728 S.W.2d49, 54-55 (Tex. App.--Houston [1st Dist.] 1987,writ [**46] ref’d n.r.e).

To establish their lost profits with reasonablecertainty, the Wilkinses had to show: (1) the lostcrop’s market value, and (2) the harvestingand marketing expenses they would have in-curred on that lost part. International Har-vester Co., 507 S.W.2d at 197. To calculate theirlost crop’s market value, the Wilkinses reliedupon the United States Agriculture Stabiliza-tion and Conservation Service’s farm-yielddata. Each year the USASC measurement ser-vice gathers crop yield information from sor-ghum growers. The Wilkinses took the aver-age sorghum yield per acre and subtracted theiractual per acre yield, as evidenced by sales re-ceipts. Then they multiplied this resultingdeficit by the number of acres planted and mul-tiplied this figure by the market price. The re-sult was $ 129,170.95 for 1993 and $ 361,684.63for 1994. They submitted the $ 490,855.58 to-tal to the jury as their estimated damages.

[*506] To reach an estimated lost-profits fig-ure, the cost of harvesting and marketing thelost crop must be deducted from the $490,855.58 value of the lost crop. HN41 Thesecosts include additional lease payments, grain-elevator costs, and transportation charges. See[**47] International Harvester Co., 507

S.W.2d at 197. Harvesting and marketing ex-penses can be liberally estimated. InternationalHarvester Co., 507 S.W.2d at 197.

Here, the Wilkinses’ neighbor testified about av-erage transportation costs to move grain be-

47 S.W.3d 486, *504; 2001 Tex. LEXIS 38, **43

tween his farm and the grain elevator in Mc-Cook, Texas, where both the neighbor and theWilkinses sent their crops. Kenneth Wilkins tes-tified about how the grain-elevator companycalculates drying charges and provided the jurywith the Wilkinses’ 1993 and 1994 grain-elevator receipts. The Wilkinses’ leases contain-ing the percentage of profits that the Wilkinses’were required to pay their landlord were en-tered into evidence. Finally, there was some evi-dence presented to the jury about the seed’s ac-tual price and some evidence that Helenamay have ″written off″ a part of the price. Withthis evidence, the jury assessed the Wilkinses’net lost profits at $ 360,000. We agree with thecourt of appeals that the jury’s damagesaward was within the range of evidence theWilkinses presented and that this award is sup-ported with evidence establishing damageswith reasonable certainty. 18 S.W.3d at 759.[**48] Thus, we hold that there is some evi-

dence to support the jury’s damage award.

VI. CONCLUSION

We conclude that the Wilkinses’ delay in sub-mitting their claims to arbitration did not juris-dictionally bar their suit. We also concludethat the trial court did not abuse its discretionin admitting the Wilkinses’ expert’s testimony.Finally, we conclude that there is some evi-dence to support the jury’s liability, causation,and damages findings. Accordingly, we affirmthe court of appeals’ judgment.

James A. Baker, Justice

Dissent by: GREG ABBOTT

Dissent

JUSTICE ABBOTT, joined by JUSTICEHECHT and JUSTICE OWEN, dissenting.

Although he knew about both the alleged prob-lem with the seed and the Act’s requirementthat seed complaints be submitted to arbitra-tion, Wilkins delayed submitting his complaintto arbitration until years after he first discov-ered the problem. Because of this delay, it wastoo late for the State Seed and Plant Board

to conduct a meaningful investigation, and theBoard appropriately concluded that the com-plaint did not qualify for arbitration. Despite theAct’s plain requirement that seed complaintsbe timely submitted to arbitration as a prerequi-site to maintaining [**49] a legal action, theCourt sidesteps this requirement and permitsWilkins to maintain his suit. In doing so, theCourt encourages all seed buyers who wish tocircumvent the Act’s arbitration requirement tosimply delay submitting the complaint to arbi-tration until it is too late for the Board to inves-tigate. Because the Court ignores the Act’splain language and undermines the Act’s pur-pose by permitting seed purchasers to com-pletely circumvent the Act’s arbitration re-quirement, I dissent.

I

The Act’s purpose is to ″provide[] for an unbi-ased third party investigation by the StateSeed and Plant Board of the Texas Departmentof Agriculture of complaints concerning seedperformance.″ HOUSE COMM. ON AGRIC.AND LIVESTOCK, BILL ANALYSIS, Tex.S.B. 64, 71st Leg., R.S. (1989). To achievethis purpose, the Act requires that a seed pur-chaser who ″claims to have been damaged by thefailure of the [*507] seed to produce or per-form as represented by warranty or by the la-bel required to be attached to the seed . . . oras a result of negligence . . . must submit theclaim to arbitration″ before the Board ″as aprerequisite to the exercise of the purchaser’sright to maintain a legal action.″ [**50] TEX.AGRIC. CODE § 64.002 (emphasis added).

In order for the Board to be able to conduct ameaningful investigation, the Act expressly pro-vides that the arbitration complaint must besubmitted ″within the time necessary to permiteffective inspection of the plants under fieldconditions.″ Id. § 64.006(a). The question theCourt must answer today is: When the seed pur-chaser does not file the arbitration complaintwithin the time necessary to permit effective in-spection of the plants under field conditions(even though he is aware of the problem dur-ing that time and conducts his own inspection),and the Board concludes that the complaint

47 S.W.3d 486, *506; 2001 Tex. LEXIS 38, **47

does not qualify for arbitration because of thedelay, is the purchaser’s legal action based on theseller’s alleged misrepresentations barred?Simple rules of statutory construction requirethat this question be answered yes.

First, the Act provides both that the seed pur-chaser ″must submit the claim to arbitration asprovided by [Chapter 64]″ and that ″the com-plaint must be filed within the time necessary topermit effective inspection of the plants underfield conditions.″ Id.§§ 64.002, 64.006(a)[**51] (emphasis added). According to the

Code Construction Act, ″must″ creates or recog-nizes a condition precedent. TEX. GOV’TCODE § 311.016(3). A condition precedent is″an event that must happen or be performed be-fore a right can accrue to enforce an obliga-tion.″ Centex Corp. v. Dalton, 840 S.W.2d 952,956 (Tex. 1992). Thus, before a seed pur-chaser may maintain his suit, he must submithis claim to arbitration and he must do so withinthe time necessary to permit effective inspec-tion of the plants under field conditions -- it isnot enough to ″submit″ the claim when no in-spection is possible. Because the Board ″shallconduct arbitration as provided by [Chapter64],″ id.§ 64.005(b), if the seed purchaser failsto timely submit the claim as directed byChapter 64, the Board cannot arbitrate and thesole purpose of the Act is thwarted.

Second, the Legislature expressly indicatedthat the Act was based on a similar Florida stat-ute. The bill analysis recognizes that ″formany years the state of Florida has used amethod of arbitration with an unbiased thirdparty investigation and opinion″ and the ″Ameri-can Seed Trade Association has [**52] recom-mended to each of its member states thatthey work to pass measures similar to Flori-da’s.″ See HOUSE COMM. ON AGRIC. ANDLIVESTOCK, BILL ANALYSIS, Tex. S.B.64, 71st

Leg., R.S. (1989). At the time the Texas Seed Ar-bitration Act was enacted, the Florida statuteprovided that:

when any farmer is damaged by the failure of .. . seed to produce or perform as representedby the label . . ., as a prerequisite to his right tomaintain a legal action against the dealerfrom whom such seed was purchased, suchfarmer shall make a sworn complaint . . . . Thecomplaint shall be filed with the department,and a copy of the complaint shall be served onthe dealer by certified mail, within such timeas to permit inspection of the crops, plants, ortrees by the seed investigation and concilia-tion council or its representatives and by thedealer from whom the seed was purchased.

FLA. STAT. ANN. § 578.26(1)(a) (1989) (empha-sis added).

The Florida and Texas statutes are substantiallysimilar -- both provide that the [*508] seedpurchaser or farmer must file a complaint or sub-mit the claim to arbitration ″as a prerequisiteto [the purchaser’s] right to maintain a legal[**53] action″ against the dealer or labeler.

Both statutes require the complaint to be filedin a timely manner so that it can be appropri-ately investigated and the crops can be in-spected.

″It is a generally accepted rule of statutory con-struction that when the Legislature adopts a’foreign’ statute it also adopts the constructionof that statute by the foreign jurisdiction oc-curring prior to the Texas enactment.″ State v.Moreno, 807 S.W.2d 327, 332 n.5 (Tex.Cri-m.App. 1991); see also City of Garland v. Dal-las Morning News, 22 S.W.3d 351, 360 (Tex.2000); Tex. Dep’t of Pub. Safety v. Gilbreath,842 S.W.2d 408, 412 (Tex. App.--Austin 1992,no writ). The Florida Supreme Court con-strued Florida’s seed act in 1983 in Ferry-Morse Seed Co. v. Hitchcock, 426 So. 2d 958(Fla. 1983). 1 Just as in this case, the farmer inHitchcock waited over two years after discov-ering the problem to bring suit alleging breach ofwarranty and negligence, and made no at-tempt to comply with the statutory require-ments. The Florida Supreme Court held that the

1 Florida’s 1977 Act, which was at issue in Ferry-Morse, was similar to its 1989 version except that it required the farmer tofile a sworn complaint with the department of agriculture within 10 days after the problem became apparent. FLA. STAT. ANN.§ 578.26(1) (1977).

47 S.W.3d 486, *507; 2001 Tex. LEXIS 38, **50

farmer’s claims were inextricably bound to thestatute’s labeling requirements, and that[**54] by failing to comply with the statu-

tory requirements, the farmer was barred frombringing suit for damages. Id. at 961.

The Texas Legislature enacted Chapter 64 in1989, well after the Florida Supreme Court is-sued its decision construing Florida’s seedact. Accordingly, we should presume that theLegislature intended to adopt Florida’s construc-tion of its statute, so long as the Florida andTexas statutes are substantially similar and ourstatute does not reflect a contrary intent. SeeSharifi v. Young Bros., 835 S.W.2d 221, 223(Tex. App.--Waco 1992, writ denied). As noted,the acts are substantially similar, and neitherthe Texas statute itself nor the available legisla-tive history indicates a contrary [**55] in-tent.

The only notable difference between the Texasand Florida statutes is the provision in sec-tion 64.004 that:

the court may . . . take into account any find-ings of the board of arbitration with respect tothe failure of any party to cooperate in the ar-bitration proceedings, including any finding asto the effect of delay in filing the arbitrationclaim or the arbitration board’s ability to deter-mine the facts of the case.

TEX. AGRIC. CODE § 64.004. Both the Courtand Wilkins contend that Wilkins’s delay infiling his arbitration complaint does not bar hissuit because the statute specifically addressesthis problem by allowing the trial court to takesuch delays into account. However, becausethat interpretation allows Wilkins to completelycircumvent Chapter 64’s arbitration require-ment, it simply cannot be an accurate applica-tion of section 64.004.

To the contrary, section 64.004 deals with thesituation in which the complaint is filed withinthe time necessary to permit effective inspec-tion under field conditions, but the seed purchas-er’s delay in filing nevertheless affects the in-vestigation. A purchaser could certainly delayfiling [**56] an arbitration complaint formany months yet still file while the seeds are un-

der field conditions. For example, if the prob-lem became apparent early in the season but[*509] the farmer delayed submitting the

claim to arbitration until after the heat of thesummer, the delay could affect the Board’s in-vestigation. Section 64.004 allows the trialcourt to consider such a delay; it does not al-low the court to completely ignore the statute’stimeliness requirements. Moreover, section64.004, by its terms, applies only to a com-plaint ″that has been the subject of arbitrationunder [Chapter 64].″ Because Wilkins’s com-plaint was not arbitrated -- and could nothave been under the terms of the statute -- sec-tion 64.004 does not apply.

Construed in this manner, section 64.004 is con-sistent with the Act’s purpose and with the con-clusion that a purchaser’s failure to file an ar-bitration complaint within the time necessary topermit inspection during field conditions is abar to suit. But the Court would rather rely onthis one provision to gut the purpose of theAct. Rather than interpreting this single sen-tence in a manner entirely inconsistent with theAct’s purpose of allowing an indepen-dent [**57] third-party investigation, weshould interpret it consistently with the Act asa whole. See Tex. Workers’ Comp. Ins. Fund v.Del Indus., Inc., 35 S.W.3d 591, 593 (Tex.2000) (stating that we do not construe statutorylanguage in isolation but in the context of theentire statutory scheme). And, when two con-structions are possible, we should choose theone most consistent with the Act’s purpose overthe construction completely at odds with it.

The Court’s construction of the Act rendersmeaningless section 64.006(a)’s requirementthat the arbitration complaint be submittedwithin the time necessary to permit effective in-spection of the plants under field conditions.Relying on the fact that the Act does not ex-pressly state that the Board must conduct thefield inspection, the Court reasons that ″theAct provides that a complaint must be filed intime to ’permit an effective inspection of theplants under field conditions,’ thus permittingthe parties to inspect under field conditions andprovide their reports to the Board.″ 47 S.W.3d486, 2001 Tex. LEXIS 38, *20 (citations omit-

47 S.W.3d 486, *508; 2001 Tex. LEXIS 38, **53

ted). But this reasoning makes no sense. Thetiming requirement must have been intended toallow someone to conduct [**58] a field in-spection. According to the Court, that someoneis simply ″the parties.″ But surely the Act’stimeliness requirement was not included to al-low the farmer to conduct a field inspection,since the farmer has access to his fields andcan conduct an inspection at any time. Accord-ingly, the requirement must have been in-tended to permit the Board or the seed seller toconduct an inspection. Since the Act’s pur-pose is to allow a third party investigation andthe Board employs its own field inspectors,the only conclusion is that the Legislature in-tended to permit the Board to conduct an inspec-tion. But under the Court’s interpretation,there would be no problem even if no one con-ducted a field inspection and the farmerwaited until well after the crops had been har-vested to file the arbitration complaint sothat no field inspection could be performed.Or, the farmer could conduct a field inspectionbut then wait until after field conditions tofile the arbitration complaint so that the onlyfield inspection the Board could consider wouldbe the farmer’s.

The Court’s construction reads section64.006(a)’s timeliness requirement right out ofthe Act. To be consistent with [**59] boththe Act’s language and its purpose, I would holdthat Wilkins’s failure to submit his claim to ar-bitration within the requisite time periodbars him from maintaining a legal action againstHelena.

II

Wilkins argues that, regardless of whether theAct bars certain claims that [*510] have notbeen arbitrated, the jury’s verdict can be sus-tained on the basis of the DTPA unconscionabil-ity and misrepresentation causes of action,which he contends are not subject to the Act’s ar-bitration requirement. Wilkins obtained favor-able jury findings on his claims for breach ofwarranty, DTPA unconscionability, andDTPA oral misrepresentations. Wilkins arguesthat, even if the breach of warranty claim isbarred by his failure to arbitrate, the Act does

not bar his DTPA unconscionability and misrep-resentation claims because the statute requiresonly claims based on the label, warranty, or neg-ligence to be submitted to arbitration, and hisDTPA claims are not based on the label, war-ranty, or negligence.

If Wilkins is correct, plaintiffs could easily cir-cumvent the Act simply by recharacterizingtheir claims as DTPA claims. This would ren-der the Act wholly ineffective and would under-mine the legislative [**60] intent. Cf. So-rokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994) (″Claims that a physician or health careprovider was negligent may not be recast asDTPA actions to avoid the standards set forthin the Medical Liability and Insurance Improve-ment Act.″). The Act’s language is broad -- itapplies whenever a seed purchaser claims tohave been damaged ″by the failure of theseed to produce or perform as represented bywarranty or by the label required to be at-tached . . . or as a result of negligence.″TEX. AGRIC. CODE § 64.002(a). The Busi-ness and Commerce Code -- the same code inwhich the DTPA is found -- defines warranties toinclude ″any affirmation of fact or promisemade by the seller to the buyer which relatesto the goods and becomes part of the basis of thebargain″ and ″any description of the goodswhich is made part of the basis of the bar-gain.″ TEX. BUS. & COM. CODE §2.313(a)(1),(2). Wilkins’s claims for DTPA mis-representation and unconscionability fallwithin the scope of this definition.

In the jury charge, the DTPA misrepresentationclaim defined ″false, misleading, or deceptiveact or practice″ [**61] as ″representing thatCherokee seed had or would have characteris-tics that it did not have″ or ″representing thatCherokee seed was of a particular quality ifit was of another.″ These representations fallwithin the definition of warranty, and, althoughcouched as a DTPA misrepresentation claim,the underlying nature of the complaint is that theseeds did not produce or perform as repre-sented. See Sorokolit, 889 S.W.2d at 242 (hold-ing that the underlying nature of the claim,not its label, determines whether section12.01(a) of the Medical Liability and Insurance

47 S.W.3d 486, *509; 2001 Tex. LEXIS 38, **57

Improvement Act prevents suit for violation ofthe DTPA). Wilkins’s DTPA unconscionabil-ity claims are also predicated on Helena’s rep-resentations concerning the Cherokee seed.The evidence supporting Wilkins’s DTPA mis-representation and unconscionability claimsis the same evidence supporting his breach ofwarranty claims. Because all of Wilkins’s claimsare so significantly factually intertwined, theyshould be arbitrated together. Cf. Jack B. Ang-lin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex.1992) (requiring arbitration of factually inter-twined contract and misrepresentation claims incontractual [**62] arbitration context). Ac-cordingly, Wilkins’s DTPA claims are includedwithin the Act’s arbitration requirement.

III

Wilkins argued in the trial court that constru-ing the Act to bar his legal action would vio-late the Open Courts provision of the TexasConstitution. SeeTEX. CONST. art. I, § 13. Weshould, if possible, interpret statutes in a man-ner that avoids constitutional infirmities. Ow-ens Corning v. Carter, 997 S.W.2d 560, 577(Tex. 1999). [*511] The Attorney General hasconcluded, and I agree, that Chapter 64’s arbi-tration requirements do not on their face vio-late the Open Courts provision of the TexasConstitution. Op. Tex. Att’y Gen. No. DM-3(1991). As noted in that decision, Chapter 64does not purport to abolish the right of seed per-formance disputants to obtain redress incourt. Id. The arbitration is non-binding, andseed purchasers are free to pursue their claimsin court after the arbitration. Moreover, Chap-ter 64’s arbitration requirements are certainly notunreasonable or arbitrary when balancedagainst the purpose and basis of the statute.Id.; see Carter, 997 S.W.2d at 573; Sax v. Vot-teler, 648 S.W.2d 661, 666 (Tex. 1983).[**63]

The Attorney General did caution, however,that the Act could raise Open Courts questionsas applied to some cases. Op. Tex. Att’y

Gen. No. DM-3 (1991). In particular, the Attor-ney General pointed out that the Open Courtsprovision could limit the application of section64.006(a)’s requirement that the arbitrationcomplaint be filed in time to permit inspectionof the plants under field conditions. Id. Iagree that this requirement might arguably vio-late the Open Courts provision as applied tocases in which the Act’s complaint-filing timeperiod has expired before the seed purchaser hasa reasonable opportunity to discover the prob-lem. But where, as here, the seed purchaser dis-covers the problem while the seeds are underfield conditions (and conducts his own indepen-dent investigation of the crops in the field), isaware of the arbitration requirement, and hasample opportunity to file his complaint in atimely manner but simply fails to do so, theOpen Courts provision is satisfied.

* * * * *

Wilkins knew of the potential problem withthe Cherokee seed within plenty of time to filea complaint with the Board during the requi-site time period. Although he allowed someexperts [**64] to investigate his crops underfield conditions, he failed to file a complaintwith the Board to allow the neutral third-partyinvestigation required by the Act. BecauseWilkins failed to submit his complaint withinthe requisite time period, the Board properlyconcluded that the complaint did not qualifyfor arbitration under the Act’s plain language.And because arbitration is a prerequisite toWilkins’s right to maintain a legal action forhis claims that he has been damaged by the fail-ure of the seed to produce or perform as repre-sented, Wilkins’s claims are barred. TheCourt nevertheless decides that they are not. Be-cause that decision contradicts the Act’s plainlanguage and undermines its purpose, I dissent.

GREG ABBOTT

JUSTICE

April 26, 2001

47 S.W.3d 486, *510; 2001 Tex. LEXIS 38, **61


Document(1)

1. TJFA, L.P. v. Tex. Comm’n on Envtl. Quality & BFI Waste Sys. of N. Am., Inc., 368 S.W.3d 727



PositiveAs of: March 1, 2013 1:29 PM EST

TJFA, L.P. v. Tex. Comm’n on Envtl. Quality & BFI Waste Sys. of N. Am., Inc.

Court of Appeals of Texas, Third District, Austin

May 4, 2012, Filed

NO. 03-10-00677-CV

Reporter: 368 S.W.3d 727; 2012 Tex. App. LEXIS 3594; 2012 WL 1582374

TJFA, L.P., Appellant v. Texas Commission onEnvironmental Quality and BFI Waste Systemsof North America, Inc., Appellees

Subsequent History: Petition for review deniedby TJFA, L.P. v. Tex. Comm’n on Envtl. Quality,2012 Tex. LEXIS 826 (Tex., Sept. 21, 2012)

Prior History: [**1] FROM THE DISTRICTCOURT OF TRAVIS COUNTY, 53RD JUDI-CIAL DISTRICT NO. D-1-GN-09-004062,HONORABLE JOHN K. DIETZ, JUDGE PRE-SIDING.Northeast Neighbors Coalition v. Tex. Comm’non Envtl. Quality, 2011 Tex. App. LEXIS5948 (Tex. App. Austin, July 29, 2011)

Disposition: Modified and, as Modified, Af-firmed.

Core Terms

deadline, mandatory, directory, district court,notice, service of citation, judicial review,statutory provisions, statutory requirements, pet,safety code, accomplished, noncompliance,prerequisite, sovereign immunity, failure tocomply, trial court, file suit, diligence, austin,prompt, statutory prerequisite, legislative intent,subject-matter

Case Summary

Procedural PostureAppellant property owner sought review of ajudgment from the District Court of Travis

County, 53rd Judicial District (Texas), whichdismissed its suit seeking judicial review of a de-cision from appellee Texas Commission on En-vironmental Quality that granted appelleewaste company’s application to expand a land-fill near the owner’s property and requiredthe owner to pay half of the transcript fees forthe administrative hearing.

OverviewThe owner timely filed suit but did not executeservice of citation until after the 30-day dead-line specified in Tex. Health & Safety Code Ann.§ 361.321(c) (2010). The district court dis-missed the suit by granting the Commission’splea to the jurisdiction and, alternatively, dis-missed the suit for failure to comply with amandatory statutory directive. The court con-cluded that execution of service was not a statu-tory prerequisite to suit under § 361.321(c)and that untimely service therefore was not a ju-risdictional defect. In the context of suitsagainst the state, a statutory prerequisite to suitwas a step or condition that had to be satis-fied before the suit could be filed. Case law con-struing Tex. Gov’t Code Ann. § 311.034(Supp. 2011) explicitly distinguished betweenprerequisites to suit and requirements that couldbe accomplished only after a suit was filed,such as service of citation. Because § 361.321(c)contained the mandatory term ″must″ and pro-vided an explicit deadline for execution of ser-vice, the court agreed with the trial court’s alter-native conclusion that the owner had failed tocomply with a mandatory statutory require-ment.

Outcome

The court affirmed the district court’s judg-ment of dismissal as modified in accordancewith the court’s conclusion that the service dead-line was not jurisdictional.


Civil Procedure > ... > Responses > Defenses, Demur-rers & Objections > Motions to Dismiss

HN1 A party to a case may assert that a trialcourt is without jurisdiction to consider the caseby filing a plea to the jurisdiction.

Civil Procedure > ... > Responses > Defenses, Demur-rers & Objections > Motions to DismissCivil Procedure > Appeals > Appellate Jurisdic-tion > Interlocutory OrdersGovernments > State & Territorial Govern-ments > Claims By & Against

HN2 In cases in which a governmental unithas filed a plea to the jurisdiction, a party to thecase may appeal the grant or the denial of theplea. Tex. Civ. Prac. & Rem. Code Ann. §51.014(a)(8) (2008 & Supp. 2011).

Civil Procedure > ... > Responses > Defenses, Demur-rers & Objections > Motions to DismissCivil Procedure > Appeals > Standards of Re-view > De Novo Review

HN3 On appeal, a trial court’s grant or denialof a plea to the jurisdiction is reviewed de novo.

Civil Procedure > Appeals > Standards of Re-view > De Novo ReviewGovernments > Legislation > Interpretation

HN4 Statutory construction is a legal questionthat is reviewed de novo.


HN5 In construing a statute, a court must ascer-tain the legislature’s intent in enacting the stat-ute. In making this determination, courtsshould look to the plain meaning of the wordsused in the statute. A court presumes that ev-ery word was deliberately chosen and that ex-cluded words were left out on purpose.When determining legislative intent, the entireact, not isolated portions, must be consid-

ered. A court may also consider the objectsought to be attained by enacting the statuteand the consequences of a particular construc-tion. Tex. Gov’t Code Ann. § 311.023 (2005).

Governments > State & Territorial Govern-ments > Claims By & Against

HN6 The legislature has expressly limited thecircumstances in which a statute should be con-strued as a waiver of sovereign immunity.Tex. Gov’t Code Ann. § 311.034 (Supp. 2011).Moreover, statutory prerequisites to a suit, in-cluding the provision of notice, are jurisdic-tional requirements in all suits against a gov-ernmental entity.

Governments > State & Territorial Govern-ments > Claims By & Against

HN7 In the context of suits against the state, astatutory prerequisite to suit is a step or con-dition that must be satisfied before the suitagainst the state can be filed. When construingTex. Gov’t Code Ann. § 311.034 (Supp.2011), the Texas Supreme Court has explicitlydistinguished between prerequisites to suitand requirements that may only be accom-plished after a suit is filed. Section 311.034 doesnot apply to notice requirements that can be sat-isfied only after suit is filed.

Civil Procedure > ... > Pleadings > Signa-ture > General OverviewEnvironmental Law > Administrative Proceedings &Litigation > Jurisdiction

HN8 By the terms of Tex. Health & SafetyCode Ann. § 361.321(c) (2010), the 30-day dead-line for executing service of process begins af-ter the suit has been filed.


HN9 When construing a statute, courts mustbe mindful that there is a presumption againstfinding a statutory provision to be jurisdic-tional. Furthermore, that presumption mayonly be overcome by clear legislative intent tothe contrary.

Civil Procedure > ... > Subject Matter Jurisdic-tion > Jurisdiction Over Actions > General Overview

368 S.W.3d 727, *727; 2012 Tex. App. LEXIS 3594, **1

HN10 Filing a petition endows a trial courtwith subject-matter jurisdiction provided thatthe case involves a dispute that the trial court hasauthority to adjudicate. In other words, the au-thority of the court to act in the matter is prop-erly invoked by filing a petition alleging a claimfalling under the jurisdiction of the court. Ifthe petition does not address a dispute falling un-der the court’s jurisdictional umbrella, thenthe court does not have subject-matter jurisdic-tion, and the case is subject to dismissal by aplea to the jurisdiction.

Civil Procedure > ... > In Rem & Personal Jurisdic-tion > In Personam Actions > ConsentCivil Procedure > ... > Service of Process > Waiver ofProcess & Service > General Overview

HN11 A defendant may generally waive a de-fect in service if he chooses.


HN12 Execution of service is not a statutory pre-requisite to suit under Tex. Health & SafetyCode Ann. § 361.321(c) (2010). A failure totimely execute should instead be viewed as simi-lar to a more traditional failure to complywith a statute of limitations. In other words,the defendant may argue that the case should bedismissed for failing to timely execute ser-vice, but untimely service is not a jurisdic-tional defect.


HN13 For determinations regarding whether astatutory requirement is directory or manda-tory, there is no absolute test that courts mayapply. In general, statutes that use words like″shall″ or ″must″ are construed as manda-tory, but courts have, in certain circumstances,construed those terms as being directoryrather than mandatory. Statutory provisionsthat are included for the purpose of promotingthe proper, orderly and prompt conduct ofbusiness are not generally construed as manda-tory, particularly when the failure to complywill not prejudice the rights of the interested par-

ties. One factor that may weigh in favor of con-struing a statute that requires timely action asdirectory is if the statute does not specify con-sequences for failing to act by the statutorydeadline. Stated differently, if a provision re-quires that an act be performed within a cer-tain time without any words restraining the act’sperformance after that time, the timing provi-sion is usually directory. Accordingly, when astatute uses the word ″must″ to describe a re-quirement and also includes a penalty for non-compliance, the word ″must″ is given a man-datory meaning.


HN14 The absence of a penalty in a statute forfailing to comply with a statutory require-ment does not automatically compel a conclu-sion that a statute stating that an act must be ac-complished is not mandatory. Instead, whenthe statute is silent regarding the penalty for non-compliance, courts look to the statute’s pur-pose for guidance.

Civil Procedure > ... > Pleadings > Signa-ture > General Overview

HN15 When the legislature has not providedspecific deadlines for service, courts have deter-mined whether service of citation was prop-erly performed in cases in which service was ex-ecuted after the deadline for filing suit byconsidering whether the person filing suit exer-cised due diligence in executing service. Byproviding an explicit deadline, the legislature in-dicates its intention to foreclose the possibil-ity of excusing delays between filing and execut-ing service due to diligent efforts at serviceundertaken by plaintiffs.

Governments > Legislation > InterpretationGovernments > State & Territorial Govern-ments > Claims By & Against

HN16 Courts are required to narrowly construestatutory waivers of sovereign immunity.


368 S.W.3d 727, *727; 2012 Tex. App. LEXIS 3594, **1

HN17 The 30-day deadline in Tex. Health &Safety Code Ann. § 361.321(c) (2010) for ex-ecuting service of process is a mandatory statu-tory requirement.

Judges: Before Chief Justice Jones, JusticesPuryear, Pemberton, Henson, Rose and Good-win; Concurring and Dissenting Opinion by Jus-tice Henson; Concurring Opinion by JusticeRose.

Opinion by: David Puryear

Opinion

[*729] TJFA, L.P. (″TJFA″) sought judicialreview of a decision made by the Texas Com-mission on Environmental Quality (the ″Com-mission″) that granted an application to ex-pand a landfill and that required TJFA to payhalf of the transcript fees associated with thehearing addressing the application. AlthoughTJFA filed its suit within the statutory dead-line, it did not execute service of citation until af-ter the deadline listed in the health and safetycode. SeeTex. Health & Safety Code Ann. §361.321(c) (West 2010). For that reason, theCommission filed a joint plea to the jurisdic-tion and motion to dismiss. After a hearing, thedistrict court dismissed the suit by grantingthe plea and, alternatively, dismissed the suitfor failure to comply with a mandatory statu-tory directive. The district court also orderedTJFA to pay the transcript fees imposed[**2] by the Commission. We will affirm en

banc the district court’s dismissal of the suit forfailure to comply with a mandatory statutoryprovision. SeeTex. R. App. P. 41.2 (allowing ap-pellate court to decide to consider case enbanc).

BACKGROUND

BFI Waste Systems of North America, Inc.(″BFI″) sought to expand its municipal-solid-waste-landfill permit for a landfill on the eastside of Austin, Texas. TJFA owned land nearthe landfill and opposed the expansion sug-gested by BFI. After a hearing, the Commis-sion approved the proposed expansion and is-sued an order granting the application for

expansion. In its order, the Commission also or-dered BFI and TJFA to each pay one-half ofthe $13,128.85 in transcript fees ($6,564.42each) generated as a result of the hearing be-fore the Commission.

Shortly after the Commission made its determi-nation, TJFA filed a suit for judicial review ofthe Commission’s decision. SeeTex. Health &Safety Code Ann. § 361.321(c) (explainingthat to appeal administrative determination, af-fected party must file petition within 30 daysof Commission’s decision). Because it was con-testing the Commission’s determination, TJFAdid not pay its portion of the transcript fees,[**3] and BFI paid the full amount. On the

day that it filed suit, TJFA gave the Commis-sion a copy of the petition, but TJFA did not ex-ecute service of citation on the Commission un-til 41 days after it filed suit. Under thegoverning statutory provision, ″[s]ervice of cita-tion must be accomplished not later than the30th day after the date on which the petition isfiled.″ Id.

After being served, the Commission filed ajoint plea to the jurisdiction and motion to dis-miss. In the filing, the Commission assertedthat because TJFA did not comply with the 30-day deadline for service of citation, the dis-trict court did not have subject-matter jurisdic-tion over the case. Alternatively, theCommission contended that the suit should bedismissed because TJFA failed to comply with astatutory requirement. After the Commissionrequested that the case be dismissed, BFI inter-vened in the case and filed a counterclaimagainst TJFA for the transcript fees that the Com-mission ordered TJFA to pay.

In response to the Commission’s filing, the dis-trict court scheduled a hearing. After the hear-ing, the district court dismissed the suit. In par-ticular, the district court found that the 30-daydeadline for executing [**4] service of cita-tion was a jurisdictional prerequisite to suit. Al-ternatively, the district court determined that the30-day statutory deadline was ″mandatory,not directory.″ Further, the district court [*730]determined that TJFA had not complied withthe deadline because the Commission ″was not

368 S.W.3d 727, *727; 2012 Tex. App. LEXIS 3594, **1

served with citation until 41 days after the suitwas filed.″ Accordingly, the district court dis-missed TJFA’s suit. In addition, the district courtordered TJFA to reimburse BFI for half of thetranscript fees from the administrative hearing($6,564.42).

After the district court made its ruling, TJFA ap-pealed the district court’s dismissal.

STANDARD OF REVIEW

HN1 A party to a case may assert that a trialcourt is without jurisdiction to consider the caseby filing a plea to the jurisdiction. HoustonMun. Employees Pension Sys. v. Ferrell, 248S.W.3d 151, 156 (Tex. 2007). HN2 In cases inwhich a governmental unit has filed a plea tothe jurisdiction, a party to the case may appealthe grant or the denial of the plea. SeeTex.Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)(West 2008 & Supp. 2011); see also id. §101.001(3) (West 2011 & Supp. 2011) (defin-ing ″governmental unit″). HN3 On appeal,we review de novo the [**5] trial court’s grantor denial of the plea. Ferrell, 248 S.W.3d at156.

Moreover, the issues asserted by TJFA involveHN4 statutory construction, which is a legalquestion that we review de novo. See MCI Sales& Serv., Inc. v. Hinton, 329 S.W.3d 475, 501n.30 (Tex. 2010); Bragg v. Edwards AquiferAuth., 71 S.W.3d 729, 734 (Tex. 2002); USAWaste Servs. of Houston, Inc. v. Strayhorn,150 S.W.3d 491, 494 (Tex. App.—Austin 2004,pet. denied). HN5 In construing a statute, wemust ascertain the legislature’s intent in enact-ing the statute. Fleming Foods of Tex. v. Ry-lander, 6 S.W.3d 278, 284 (Tex. 1999). In mak-ing this determination, courts should look tothe plain meaning of the words used in the stat-ute. 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 deliberatelychosen and that excluded words were left out onpurpose. USA Waste Servs., 150 S.W.3d at494. When determining legislative intent, the en-tire act, not isolated portions, must be consid-ered. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex.1998). We may also consider the ″object

sought to be attained″ by enacting the statuteand the ″consequences of a particular construc-tion.″ [**6] Tex. Gov’t Code Ann. § 311.023(West 2005); see City of Austin v. Southwest-ern Bell Tel. Co., 92 S.W.3d 434, 442 (Tex.2002).

DISCUSSION

On appeal, TJFA challenges the district court’salternative bases for dismissing the suit.First, TJFA contends that the district courterred when it determined that the service-of-citation requirement found in section 361.321 ofthe health and safety code is a jurisdictionalprerequisite to suit. Accordingly, TJFA arguesthat its failure to execute service within 30 daysdid not deprive the district court of jurisdic-tion and that the district court therefore erred bygranting the Commission’s plea to the jurisdic-tion. Second, TJFA attacks the districtcourt’s alternative determination that the casebe dismissed because the service requirement ismandatory. Instead, TJFA insists that the pro-vision is merely directory and that its failure tocomply with the requirement should be ex-cused because it diligently attempted to ex-ecute service. For these reasons, TJFA arguesthat the district court erred by dismissing the suitand by ordering TJFA to pay half of the tran-script fees.

Dismissal for Lack of Subject Matter Jurisdic-tion

As described above, TJFA’s [**7] first issuechallenges the district court’s grant of [*731]the Commission’s plea to the jurisdiction anddismissal of the case for lack of subject-matterjurisdiction. When supporting the districtcourt’s jurisdictional determination, the Com-mission notes that HN6 the legislature has ex-pressly limited the circumstances in which astatute should be construed as a waiver of sov-ereign immunity. SeeTex. Gov’t Code Ann. §311.034 (West Supp. 2011). Moreover, the Com-mission also notes that the legislature has de-termined that ″[s]tatutory prerequisites to a suit,including the provision of notice, are jurisdic-tional requirements in all suits against a govern-mental entity.″ Id. In light of that determina-

368 S.W.3d 727, *730; 2012 Tex. App. LEXIS 3594, **4

tion, the Commission argues that timelyexecution of service of citation is a statutory pre-requisite for waiving sovereign immunity un-der subsection 361.321(c) of the health andsafety code. SeeTex. Health & Safety CodeAnn. § 361.321(c). Accordingly, the Commis-sion contends that because TJFA failed to ex-ecute service within the statutory deadline,the district court did not have subject-matter ju-risdiction over the claim.

For the reasons that follow, we disagree withthe Commission. This Court has [**8] previ-ously explained what qualifies as a statutoryprerequisite to suit. See Scott v. Presidio Indep.Sch. Dist., 266 S.W.3d 531, 535, 537 (Tex.App.—Austin 2008) (op. on reh’g) (concludingthat requirement that all parties agree to al-low suit to occur in Travis County before suitis filed is statutory prerequisite to suit and, there-fore, jurisdictional), rev’d on other grounds,309 S.W.3d 927 (Tex. 2010) (reversing appel-late court’s determination that Commissioner ofEducation was required to give consent tosuit being filed in Travis County). HN7 In thecontext of suits against the State, this Courtreasoned that a statutory prerequisite to suit is″a step or condition that must be satisfied be-fore the suit against the state can be filed.″Id. at 535. That construction is consistent withthose of other courts of appeals. See Countyof Bexar v. Bruton, 256 S.W.3d 345, 348 (Tex.App.—San Antonio 2008, no pet.) (statingthat common usage of term ″[p]rerequisite tosuit . . . implies a requirement to be fulfilled be-fore suit is filed″); Dallas County v. Hughes,189 S.W.3d 886, 888 (Tex. App.—Dallas 2006,pet. denied) (observing that ordinary meaningof ″[a] prerequisite is something that [**9] is re-quired beforehand″). In fact, when construingsection 311.034 of the government code, the su-preme court explicitly distinguished betweenprerequisites to suit and requirements that mayonly be accomplished after a suit is filed.See Roccaforte v. Jefferson County, 341 S.W.3d919, 925 (Tex. 2011). In particular, the su-

preme court determined that section 311.034does not apply to ″notice requirements that canbe satisfied only after suit is filed.″ See id.;see also Ballesteros v. Nueces County, 286S.W.3d 566, 569-70 (Tex. App.—Corpus Christi2009, pet. denied) (holding that compliancewith post-suit-notice provision is not jurisdic-tional); Dallas County v. Coskey, 247 S.W.3d753, 754-56 (Tex. App.—Dallas 2008, pet. de-nied) (concluding that requirement that notice begiven thirty days after suit was filed is notstatutory prerequisite and, therefore, not jurisdic-tional). HN8 By the very terms of subsection361.321(c), the 30-day deadline for executingservice of process begins after the suit hasbeen filed. SeeTex. Health & Safety Code Ann.§ 361.321(c).

HN9 When construing a statute, courts mustbe mindful that there is a presumption againstfinding a statutory provision to be jurisdic-tional. [**10] City of Desoto v. White, 288S.W.3d 389, 394 (Tex. 2009); see also Dubai Pe-troleum Co. v. Kazi, 12 S.W.3d 71, 75-76(Tex. 2000) (overruling line of cases holdingthat [*732] statutory provisions are manda-tory and exclusive and endorsing modern trendof reducing vulnerability of final judgmentsby not characterizing statutory requirements asjurisdictional). Furthermore, that presumptionmay only be overcome ″by clear legislative in-tent to the contrary.″ City of Desoto, 288S.W.3d at 394. Nothing in the language of sub-section 361.321(c) indicates an intention bythe legislature to make service a jurisdictionalrequirement, seeTex. Health & Safety Code Ann.§ 361.321(c), and as discussed above, section311.034 of the government code only makes pre-requisites to suit jurisdictional, seeTex. Gov’tCode Ann. § 311.034. See also State v. K.E.W.,315 S.W.3d 16, 21 (Tex. 2010) (stating thatwhen construing statutes, courts rely on plainmeaning of statute unless different meaning issupplied by legislature or is apparent fromcontext or unless construction using plain mean-ing ″leads to absurd results″).1

1 It is worth noting that this Court previously determined that the service-of-citation requirement [**11] 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,

368 S.W.3d 727, *731; 2012 Tex. App. LEXIS 3594, **7

Justin P.Nichols

Highlight

Justin P.Nichols

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In addition, a determination that service is nota jurisdictional requirement is consistent withthe manner in which a trial court’s jurisdic-tion is invoked. Under governing case law,HN10 filing a petition endows a trial court withsubject-matter jurisdiction provided that thecase involves a dispute that the trial court has au-thority to adjudicate. Hughes v. Atlantic Ref.Co., 424 S.W.2d 622, 625 (Tex. 1968); see Inre Alley, 1 S.W.3d 268, 271 (Tex. App.—Texarkana 1999, orig. proceeding) (explain-ing [*733] that general rule ″is that jurisdic-tion attaches at the time of the filing of aproceeding″); Gaynier v. Ginsberg, 763S.W.2d 461, 463 (Tex. App.—Dallas 1988, nowrit) (stating that jurisdiction of court to hearcase is established when petition is filed alleg-ing subject matter over which [**14] court hasjurisdiction). In other words, the authority ofthe court to act in the matter is properly in-voked by filing a petition alleging a claim fall-ing under the jurisdiction of the court. If the pe-tition does not address a dispute falling under thecourt’s jurisdictional umbrella, then the courtdoes not have subject-matter jurisdiction, andthe case is subject to dismissal by a plea tothe jurisdiction. See State v. Holland, 221

S.W.3d 639, 642 (Tex. 2007) (explaining thatwhen plea challenges jurisdiction of court, courtreviews petition to determine whether factspleaded ″demonstrate that jurisdiction exists″).Moreover, unlike subject-matter jurisdiction,HN11 a defendant may generally waive a de-fect in service if he chooses. See Werner v. Col-well, 909 S.W.2d 866, 869-70 (Tex. 1995);see alsoTex. R. Civ. P. 121 (stating that answerconstitutes ″an appearance of the defendantso as to dispense with the necessity for the issu-ance or service of citation upon him″).

In light of the preceding, we conclude that thedistrict court erred when it determined thatcompliance with the deadline for service of ci-tation was a jurisdictional prerequisite tosuit.2 Given that the legislature chose [**15] tocreate two separate deadlines for filing suitand for executing service and given that the ser-vice deadline occurs after a suit has beenfiled, we believe that HN12 execution of ser-vice is not a statutory prerequisite to suit and thatthe failure to timely execute should instead beviewed as similar to a more traditional failure tocomply with a statute of limitations. In otherwords, the defendant may argue that the caseshould be dismissed for failing to timely ex-

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 as-serts that we should disregard our prior conclusion because that case was decided before the legislature enacted a provision stat-ing that statutory prerequisites to suit were jurisdictional. SeeTex. Gov’t Code Ann. § 311.034(c) (West Supp. 2011). In addition, theCommission points to various portions of the supreme court’s opinion affirming our judgment in which the court stated that sub-section 361.321(c) ″requires ’service of citation’ when review is sought in district court,″ Texas Natural Res. Comm’n v. SierraClub, 70 S.W.3d 809, 813-14 (Tex. 2002) (″Sierra Club II″), and in which it characterized the filing and citation requirements in sub-section 361.321(c) as ″judicial-review prerequisites,″ id. at 812. Moreover, when summarizing our opinion, the supreme courtstated that this Court concluded that the failure to meet the service-of-citation ″statutory prerequisites is not a defect that affectsthe court’s [**12] subject-matter jurisdiction.″ Id. at 811. In addition to highlighting the supreme court’s language describing the re-quirements in subsection 361.321(c), the Commission also asserts that the legislature was aware of the supreme court’s character-ization of the requirements in subsection 361.321(c) and then chose to enact a statute that made all ″statutory prerequisites″ ju-risdictional in nature. Accordingly, the Commission contends that the legal landscape underpinning our conclusion in Sierra Clubhas 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 char-acterized the service-of-citation requirements as prerequisites, the supreme court made no determination regarding whether those re-quirements were jurisdictional in nature. Instead, the supreme court concluded that the requirements were met in Sierra Club IIand, therefore, ″did not reach the jurisdictional issue addressed by″ this Court. Id. at 814-15. Accordingly, [**13] the supreme courtmade no binding determination regarding whether the failure to comply with the service-of-citation requirements in subsection361.321(c) deprives a trial court of jurisdiction, and its description of the requirements in subsection 361.321(c) is dicta. See Trav-elers Indem. Co. 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 Pa-cific 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 In-surance Company’s plea to the jurisdiction, which asserted that Twelve Oaks Medical Center failed to exercise due diligence in ex-ecuting service. 2010 Tex. App. LEXIS 2771, [WL] at *3. To the extent that Pacific Employers suggests that service of cita-tion [**16] is a jurisdictional requirement to suit, we reject that determination.

368 S.W.3d 727, *732; 2012 Tex. App. LEXIS 3594, **11

ecute service, but untimely service is not a ju-risdictional defect. Accordingly, we sustainTJFA’s first issue on appeal.

Dismissal for Failure to Comply with ServiceRequirement

As mentioned above, TJFA also challenges thedistrict court’s alternative, non-jurisdictionalbasis for dismissing the suit. In particular, TJFAasserts that the district court erred by conclud-ing that the statutory deadline listed in sub-section 361.321(c) is a mandatory provision.3

To [*734] the contrary, TJFA insists that thedeadline is merely a directory provision. Inother words, TJFA argues that although the stat-ute says that service of citation ″must be ac-complished not later than the 30th day after thedate on which the petition is filed,″ seeTex.Health & Safety Code Ann. § 361.321(c), theprovision merely ″directs, but does not man-date, performance within the specified timeperiod.″ Moreover, TJFA asserts that althoughit did not comply with the 30-day deadline forexecuting service of citation, see id., it did ex-ercise due diligence in attempting to execute ser-vice of citation. Accordingly, TJFA insiststhat the date that service was executed relatesback to the date that the suit was filed. See Po-lice Civ. Serv. Comm’n v. Gutierrez, 182S.W.3d 430, 432 (Tex. App.—Austin 2005, nopet.) [**17] (stating that if plaintiff fails to ex-ecute service of citation until after limitationsperiod expires, date of service relates backto date of filing provided that plaintiff exer-cised due ″diligence in effecting service″).

HN13 For determinations regarding whether astatutory requirement is directory or manda-tory, there is no ″absolute [**18] test″ thatcourts may apply. Chisholm v. Bewley Mills, 155Tex. 400, 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.3d486, 493 (Tex. 2001); see alsoTex. Gov’t CodeAnn. § 311.016 (West 2005) (explaining thatwhen construing statutes, courts should con-strue word ″must″ as creating or recognizingcondition precedent), but courts ″have, in cer-tain circumstances, construed″ those terms as be-ing directory rather than mandatory, TexasMut. 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 thepurpose of promoting the proper, orderly andprompt conduct of business″ are not gener-ally construed as mandatory, Chisholm, 287S.W.2d at 945, particularly when the failure tocomply will not prejudice the rights of the in-terested parties, see Texas Dep’t of Pub. Safetyv. Dear, 999 S.W.2d 148, 152 (Tex. App.—Austin 1999, no pet.) (quoting State v. Fox, 133S.W.2d 987, 990 (Tex. Civ. App.—Austin1939, writ ref’d)). One factor that may weighin favor of construing a [**19] statute that re-quires timely action as directory is if the stat-ute does not specify consequences for failing toact by the statutory deadline. Chisholm, 287S.W.2d at 945. Stated differently, ″[i]f a provi-sion requires that an act be performed withina certain time without any words restraining theact’s performance after that time, the timingprovision is usually directory.″ Wilkins, 47S.W.3d at 495; see also Dear, 999 S.W.2d at 152(explaining that if provision is directory andact is performed but not in time or manner indi-cated, act will be deemed sufficient providedthat act accomplishes substantial purpose of stat-ute). Accordingly, when a statute uses theword ″must″ to describe a requirement andalso includes a penalty for noncompliance, ″[t]heword ’must’ is given a mandatory meaning.″Wilkins, 47 S.W.3d at 493. However, HN14 theabsence of a penalty in the statute for failingto comply with a statutory requirement does not

3 In its brief, TJFA initially suggested that the district court only ruled on the plea to the jurisdiction and did not rule on themotion to dismiss. Accordingly, TJFA asserted that this Court should remand the case to the district court for a hearing on the mo-tion to dismiss if we determine that the district court erred by concluding that compliance with the 30-day deadline was a juris-dictional requirement. However, as discussed above, the district court also determined that there was a nonjurisdictional basis re-quiring dismissal of TJFA’s suit. In particular, the court found that compliance with the 30-day deadline was mandatory. Inlight of this alternative determination, TJFA later agreed during oral argument that this Court may and, in fact, should, in the inter-ests of judicial economy, consider whether dismissal was proper under the alternative basis.

368 S.W.3d 727, *733; 2012 Tex. App. LEXIS 3594, **15

automatically compel a conclusion that a stat-ute stating that an act ″must″ be accomplished isnot 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 [**20] noncompli-ance, courts look to the statute’s ″’purposefor guidance.’″ Id. (quoting Hines v. Hash, 843S.W.2d 464, 468 (Tex. 1992)); see Chisholm,287 S.W.2d at 945 (stating that when determin-ing whether provision is [*735] mandatoryor directory, courts should consider ″the entireact, its nature and object,″ and consequencesof 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 ar-guments made by TJFA. TJFA asserts thatthe 30-day deadline is directory for five rea-sons. First, TJFA contends that the provision isdirectory because ″it does not bear upon thesubstance of the judicial review appeal at all″and instead ″serves only to ensure that the [Com-mission] receives prompt notice that the casehas been initiated.″ Second, TFJA argues that thedeadline is designed to guarantee ″that thecase is diligently prosecuted″ and, therefore,simply relates to ″the proper, orderly and promptconduct of business.″ See Chisholm, 287S.W.2d at 945. Third, TJFA notes that the statu-tory provision has no explicit penalty for fail-ing to comply with the deadline and does not ex-pressly prohibit service of citation after thedeadline, [**21] see Bruton, 256 S.W.3d at 349(noting that statute requiring notice after suitwas filed contained provision authorizing dis-missal of appeal if notice was not timely madeand if party files motion to dismiss), and ar-gues that if the legislature had intended the ser-vice deadline to be a mandatory requirement,it could have specified that failing to comply willresult in dismissal as it has in other statutoryprovisions, see, e.g., Tex. Loc. Gov’t Code Ann.§ 89.0041 (West 2008). Fourth, TJFA arguesthat ″the lack of service within 30 days did not

prejudice″ the rights of the Commission be-cause it received actual notice of the lawsuit onthe day that it was filed and because serviceof citation was accomplished within a few daysof the deadline.4 In its final argument, TJFA in-sists that a conclusion that the 30-day dead-line is mandatory would actually frustrate thepurpose of the statute because the statutory pro-vision ″exists to allow judicial review appealsof administrative agency determinations.″

For the reasons that follow, we disagree withTJFA. Although this is not dispositive,[**22] we note that the language of the stat-

ute at issue is written with mandatory lan-guage. In particular, the statute specifies thatservice of citation ″must be accomplished notless than the 30th day after the date on which thepetition is filed.″ Tex. Health & Safety CodeAnn. § 361.321(c). Moreover, unlike other stat-utes in which the legislature has specified adeadline for filing a petition but chosen not tospecify a service deadline, see, e.g., Tex. Loc.Gov’t Code Ann. § 143.015(a) (West 2008)(specifying deadline for filing suit but provid-ing no deadline for service), the legislature’s de-cision to provide an explicit deadline must beafforded some significance, seeTex. Health &Safety Code Ann. § 361.321(c). HN15 Whenthe legislature has not provided specific dead-lines for service, courts have determinedwhether service of citation was properly per-formed in cases in which service was executedafter the deadline for filing suit by consider-ing whether the person filing suit exercised duediligence in executing service. See Gutierrez,182 S.W.3d at 432-33. By providing an ex-plicit deadline, the legislature has indicatedits intention to foreclose the possibility of excus-ing delays between [**23] filing and execut-ing service due to diligent efforts at service un-dertaken by plaintiffs.5

More importantly, the legislature chose to in-clude the service-of-citation deadline [*736] in

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 pur-pose of the statutory provision, which TJFA argues is to ensure the prompt provision of notice to the Commission in order to al-low for diligent prosecution of the case. Moreover, TJFA asserts that unlike filing and limitations deadlines, which TJFA con-cedes must ″practically by necessity″ be construed strictly, compliance with service is measured by whether the plaintiff acted with

368 S.W.3d 727, *734; 2012 Tex. App. LEXIS 3594, **19

the same provision explicitly requiring that a pe-tition for judicial review of the Commission’sdetermination be filed within 30 days of theCommission’s decision. See id. Given thefact that [**26] the failure to timely file a peti-tion for judicial review within 30 days of theCommission’s decision entirely deprives a trialcourt of jurisdiction to consider an appeal ofthe Commission’s decision, see Texas Comm’non 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 dead-lines in the same subsection is indicative ofthe importance that the legislature placed on theservice deadline.

Although TJFA correctly points out that thehealth and safety code provision does not specifyany explicit penalty for failing to execute ser-vice within the 30-day deadline, the statute doesnot seem to contemplate judicial review ofsuits that do not comply with the deadline. SeeWilkins, 47 S.W.3d at 495 (concluding thatstatute requiring filing of sworn complaintwithin time to allow for effective inspection wasnot mandatory because provision did not ex-pressly require dismissal for failure to complybut also because statute explicitly contemplatedthat delay in filing may occur but case may pro-ceed; in particular, statute said that Board maymake findings regarding delay in filing andthat trial court may consider those [**27] find-

ings). The governing statute provides no optionfor extending the deadline or for excusing afailure to comply with the deadline and [*737]establishes no procedure for handling suitsthat do not comply with the deadline. SeeChemical Lime, 291 S.W.3d at 404. The legisla-ture’s decision to not include a provision allow-ing a party to explain why compliance withthe deadline was not achieved is instructive. Thisseems particularly true in this case in light ofthe fact that in the very next provision, the leg-islature afforded parties the ability to explainwhy their suit should not be dismissed for fail-ure to pursue the claim ″with reasonable dili-gence.″ SeeTex. Health & Safety Code Ann. §361.321(d) (West 2010) (stating that if gov-ernmental entity files motion to dismiss for fail-ure to prosecute claim within one year after pe-tition is filed, court will dismiss suit unlessplaintiff ″can show good and sufficient causefor the delay″). In fact, the only consequence thatcan be gleaned from the statute is that a suitfiled by a party who did not comply with thedeadline is subject to dismissal by a trial court.See id. at 404 (explaining that although stat-ute was silent regarding noncompliance[**28] with application deadline, penalty con-

templated by statute was that late applica-tions will not be considered).

Finally, although TJFA correctly points out thatthe statute is designed to allow for judicial re-

due diligence in executing service and whether the defendant was prejudiced by any delay in service. Although TJFA acknowl-edges that it did not execute service of citation until after the 30-day deadline, it argues that its failure to comply should be ex-cused because it acted with due diligence in its attempts to serve the Commission. Specifically, TJFA asserts that it provided the Com-mission with a copy of its petition on the day that it filed the petition with the district court. Moreover, it argues that the reasonservice of citation was not provided earlier was due to its mistaken belief [**24] that electronically filing a petition with the dis-trict court also effected service of citation and that once it discovered its mistake, it promptly executed service of citation. Ac-cordingly, TJFA urges that the date service was executed should relate back to the date of filing. See Police Civ. Serv. Comm’n v. Guti-errez, 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 notserved until after the deadline for filing suit and that courts will excuse a failure to serve before the passage of the deadline ifthe plaintiff is actively trying to serve the defendant but is having difficulty locating the defendant. Unlike what may occur in suitsagainst 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 leg-islature’s decision to provide an explicit deadline by which service of citation must be executed foreclosed due-diligence consid-erations and instead imposed an absolute [**25] deadline that a party must comply with in order to maintain his suit. More-over, although TJFA sent a copy of its petition to the Commission and thereby gave the Commission notice of the suit, providingnotice is not the same as executing service of citation. See Sierra Club II, 70 S.W.3d at 813. Executing service of citation ismore formal than merely providing notice, seeTex. R. Civ. P. 99-119 (specifying requirements for service); see also id. R. 21a (stat-ing that every notice required by rules of civil procedure ″other than the citation . . . may be served by delivering a copy to theparty 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 ap-pearance ″and answer the opposing party’s claims,″ Sierra Club II, 70 S.W.3d at 813. Accordingly, we do not believe that TJ-FA’s actions could be deemed as complying with the purpose of the statute.

368 S.W.3d 727, *736; 2012 Tex. App. LEXIS 3594, **23

view of determinations made by the Commis-sion, the legislature curtailed this limited waiverof sovereign immunity by requiring that a suitfor judicial review be filed within 30 days of adecision by the Commission and that servicebe 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 re-view under administrative procedure act ″pro-vides a limited waiver of sovereign immu-nity″); see also id. at 172 (noting that inabsence of agency action affecting vested prop-erty right or violating constitutional right, per-son may only seek judicial review of agency de-cision if statute provides right to judicialreview). By coupling the right to judicial re-view with a requirement that suits be filed andthat service be executed within short dead-lines, the legislature has demonstrated its intentto promote the quick resolution of appeals ofdecisions by the Commission [**29] and to pro-mote the finality of the Commission’s ac-tions. In light of the preceding and in light ofthe fact that HN16 courts are required to nar-rowly construe statutory waivers of sovereignimmunity, see Mission Consol. Indep. Sch. Dist.v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008),we must reject TJFA’s assertion that the ser-

vice deadline was merely included to promote″the proper, orderly and prompt conduct of busi-ness.″ Cf. Chemical Lime, 291 S.W.3d at 403(explaining that enforcement of deadlines cansometimes lead to harsh results (quotingUnited States v. Locke, 471 U.S. 84, 100-01,105 S. Ct. 1785, 85 L. Ed. 2d 64 (1985))).6

For all the reasons previously given, we con-clude that the district court properly deter-mined that HN17 the 30-day deadline for[*738] executing service of process was a man-datory statutory requirement. Accordingly, wemust conclude that the district court did not errby dismissing TJFA’s suit for failing to com-ply with a mandatory statutory requirement andoverrule TJFA’s second issue on appeal.7

Transcript Fees

In its final issue on appeal, TJFA challengesthe portion of the district court’s judgment grant-ing BFI’s counterclaim against TJFA. As men-tioned above, the Commission ordered TJFAand BFI to each pay one-half of the costs for theadministrative transcript, but TJFA did notcover its portion of the transcript costs($6,564.42). Accordingly, BFI paid all of thetranscript fees. During the appeal of the Com-mission’s decision, BFI sought reimbursement

6 TJFA argues that the deadline set by the legislature will not be unduly undermined by a determination that the statutory dead-line is directory and not mandatory because a plaintiff’s failure to comply would only be excused if he demonstrated that he ex-ercised due diligence in attempting to execute service. However, it is not entirely clear to this Court that a determination that the dead-line is directory would actually impose the limitation suggested by TJFA. In other words, a conclusion that the deadline is notmandatory might allow the service requirement to be deemed as fulfilled even if service [**30] was executed well after the peti-tion was filed and regardless of whether the plaintiff diligently attempted to comply. In fact, the deadline might even be consid-ered satisfied provided that the Commission was given notice of the suit even though none of the service-of-citation requirementswere 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 listedin subsection 361.321(c) is directory and not mandatory. See Roccaforte v. Jefferson County, 341 S.W.3d 919 (Tex. 2011). In Roc-caforte, the supreme court determined that compliance with a statutory provision requiring notice after a suit was filed was nota jurisdictional prerequisite to [**31] suit. Id. at 925-26. However, the supreme court also determined that the suit was improp-erly 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 wasnot 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 insiststhat 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 stat-ute at issue in this case relates to execution of service. As discussed earlier, providing notice is not equivalent to executing ser-vice, 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, nopet.) [**32] (mem. op.) (explaining that rules relating to service of citation are mandatory and that failure to comply with rules ren-ders service ineffective). Accordingly, actions that might be deemed substantially compliant with a notice provision will not nec-essarily be sufficient to comply with the requirements of a provision governing service of citation.

368 S.W.3d 727, *737; 2012 Tex. App. LEXIS 3594, **28

for half of the transcript fees, and the districtcourt ordered TJFA to pay the amount orderedby the Commission.

In challenging this portion of the districtcourt’s judgment, TFJA does not challenge thepropriety of the Commission’s decision to re-quire it to pay part of the transcript costs or theamount of the costs. Instead, TJFA argues[**33] that because the district court erred by

dismissing the suit, ″the granting of BFI’scounterclaim must be reversed and the matter re-manded . . . to be considered on the merits.″In fact, although TJFA couches its concession interms of its jurisdictional assertions summa-rized in the first issue, TJFA admits that if its ap-peal of the dismissal is unsuccessful, ″BFI’s in-demnity claim would by necessity begranted.″

As discussed previously, we conclude that thedistrict court did not err by dismissing the suit.In light of our determination, we overrule TJ-FA’s final issue as presented on appeal and ex-press no further comment regarding the propri-ety of the district court’s decision enforcing theportion of the Commission’s order that re-quired TJFA to pay half of the transcript fees.

CONCLUSION

We conclude that the 30-day deadline for execut-ing service of citation under section 361.321of the health and safety code [*739] is not a ju-risdictional prerequisite to suit but is a manda-tory statutory requirement. In addition, weoverrule TJFA’s third issue regarding the tran-script fees. We therefore modify the districtcourt’s judgment accordingly and affirm the dis-trict court’s judgment of dismissal.

David Puryear [**34] , Justice

Before Chief Justice Jones, Justices Puryear,Pemberton, Henson, Rose and Goodwin; Con-curring and Dissenting Opinion by Justice Hen-son; Concurring Opinion by Justice Rose

Modified and, as Modified, Affirmed

Filed: May 4, 2012

Concur by: Jeff Rose; Diane M. Henson

Concur

CONCURRING OPINION

I join in the majority’s opinion, but write sepa-rately to emphasize our deference to theTexas Supreme Court’s expressly stated ″reluc-tan[ce] to conclude that a provision is jurisdic-tional, absent clear legislative intent to that ef-fect,″1 which furthers its policy ″’to reducethe vulnerability of final judgments to attackon the ground that the tribunal lacked subjectmatter jurisdiction.’″2 I can think of few greaterthreats to the finality of a judgment than todeem post-filing service-of-citation require-ments as jurisdictional. And given the Legisla-ture’s use of the word ″prerequisites″ ratherthan the general word ″requirements″ in sec-tion 311.034 of the Code Construction Act,3 I seeno ″clear legislative intent″ to deem section361.321(c)’s post-filing requirement for serviceof citation a jurisdictional prerequisite tosuit.4

Accordingly, I respectfully concur in the opin-ion and the judgment.

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)[**35] 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 SeeTex. Gov’t Code Ann. § 311.034 (West 2010) (providing that ″statutory prerequisites to suit . . . are jurisdictional require-ments in all suits against a governmental entity″); Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 925 (Tex. 2010) (″Section311.034 applies to prerequisites to suit, not notice requirements that can be satisfied only after suit is filed.″) (emphasis in origi-nal); see also Scott v. Presidio Indep. Sch. Dist., 266 S.W.3d 531, 535 (Tex. App.—Austin 2008) (op. on reh’g) (″A ’statutory pre-requisite to a suit . . . against a governmental entity’ refers to a step or condition that must be satisfied before the suit against thestate can be filed.″), rev’d on other grounds, 309 S.W.3d 927 (Tex. 2010).

4 SeeTex. Health & Safety Code Ann. § 361.321(c) (West 2010) (requiring service of citation within 30 day s of filing petition

368 S.W.3d 727, *738; 2012 Tex. App. LEXIS 3594, **29

Jeff Rose, Justice

Before Chief Justice Jones, Justices Puryear,Pemberton, Henson, Rose and Goodwin.

Filed: May 4, 2012

Dissent by: Diane M. Henson

Dissent

CONCURRING AND DISSENTING OPIN-ION

While I agree that the failure to effectuate ser-vice within the deadline for service set forthin subsection 361.321(c) of the health and safetycode is not jurisdictional, I disagree with themajority’s conclusion that the service deadlineis mandatory. SeeTex. Health & Safety CodeAnn. § 361.321(c) (West 2010). Because I wouldinstead conclude that the statutory servicedeadline is directory and that dismissal is not re-quired when the plaintiff demonstrates thatthe substantial purpose of the statute is met andthe Commission is not prejudiced by the de-lay, I respectfully dissent.

A statutory provision is directory if it promotesthe ″proper, orderly, [**37] and prompt con-duct of business.″ Chisholm v. Bewley Mills, 155Tex. 400, 287 S.W.2d 943, 945 (Tex. 1956).Conversely, courts construe a statutory provi-sion as mandatory when the power or duty towhich it relates is for the public good. Albert-son’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex.1999). As the majority correctly points out,there is no ″absolute test″ to determine whethera statutory provision is mandatory or direc-tory. See Chisholm, 287 S.W.2d at 945. To de-termine whether the legislature intended a pro-vision to be mandatory or directory, we considerthe plain meaning of the words used, as wellas the entire act, its nature and object, and theconsequences that would follow from each con-struction. See Helena Chem. Co. v. Wilkins,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).In light of these considerations, I would con-clude that the service deadline set forth in sub-section 361.321(c) is directory.

Turning first to the plain meaning of the wordsused, the statutory provision at issue directsthat service ″must″ be made within thirty daysbut fails to specify the proper consequencesfor noncompliance. [**38] Thus, the plain lan-guage of the provision itself fails to establishthat the deadline is mandatory. See HelenaChem. Co., 47 S.W.3d at 493 (noting thatword ″must″ is given mandatory meaning whenfollowed by noncompliance penalty). Gener-ally a provision is treated as directory if it re-quires that an act be performed within a cer-tain time but does not specify the consequencesfor noncompliance; however, this conclusion isnot automatic. Chisholm, 287 S.W.2d at 945;see Edwards Aquifer Auth. v. Chemical Lime,Ltd., 291 S.W.3d 392, 404 (Tex. 2009). There-fore, we must examine the nature and objectof the statute to determine the legislature’s in-tent. See Texas Mut. Ins. Co., 275 S.W.3d at 552.

As the majority concedes, and I agree, the stat-ute in this case is designed to allow for judi-cial review of determinations made by the Com-mission. I also agree that the legislature hassimultaneously demonstrated an ″intent to pro-mote the quick resolution of appeals of deci-sions by the Commission and to promote the fi-nality of the Commission’s actions.″ However,the majority relies in part on the fact thatthe statute operates as a waiver of sovereign im-munity, a jurisdictional issue, to conclude[*740] [**39] that the service deadline was in-

tended to do more than promote ″the proper, or-derly and prompt conduct of business.″Based on the nature and objective of the stat-ute, I disagree.

The purpose of service of citation generally isto give the court jurisdiction over the parties andto provide notice to the defendant that it hasbeen sued. TAC Americas, Inc. v. Boothe, 94

for judicial review of TCEQ decision); [**36] City of Desoto, 288 S.W.3d at 394 (noting that our ″focus is to ’avoid a resultthat leaves the decisions and judgments of [a tribunal] in limbo and subject to future attack, unless that was the Legislature’s clearintent″) (citing Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 84 (Tex. 2008)).

368 S.W.3d 727, *739; 2012 Tex. App. LEXIS 3594, **34

S.W.3d 315, 319 (Tex. App.—Austin 2002, nopet.). Notice by service thereby gives the de-fendant a chance to answer and defend thelawsuit.1Id. There is no indication that the leg-islature intended for service of citation to pro-mote a purpose other than notice of the suitagainst the Commission. By including a statu-tory deadline in which to effectuate service, thelegislature has indicated an intention to mini-mize delays in service beyond thirty days. Be-cause the deadline concerns prompt noticeand the quick resolution of judicial review, itthereby serves to promote the ″proper, orderly,and prompt conduct of business.″ Chisholm,287 S.W.2d at 945. Accordingly, I would con-clude that the service deadline presented in sub-section 361.321(c) is directory.

A conclusion that the service deadline is direc-tory is especially compelling when we con-sider the consequences of the interpretationurged by the majority. Under the majority’s in-terpretation, any delay in service of citationfor any reason would result in dismissal of thecase. This result is particularly harsh giventhe relatively short deadline for service and thefact that service may be delayed by circum-stances outside the control of the plaintiff. Cf.Texas Dep’t of Pub. Safety v. Guerra, 970S.W.2d 645, 649 (holding that statutory re-quirement that hearing be held within forty daysis directory, and noting that it would be unrea-sonable to punish plaintiff for acts that arenot within its control). I do not believe that theservice deadline was ″intended to create a pro-cedural trap allowing the [Commission] to ob-tain dismissal″ when service has been dili-gently pursued and the Commission has not been

prejudiced [**41] by the delay. See Rocca-forte v. Jefferson Cnty., 341 S.W.3d 919, 926-27(Tex. 2011) (explaining that noncompliancewith statutory requirement that notice must bemailed to county officials within 30 days of fil-ing of suit did not require dismissal when no-tice was instead hand-delivered, despite provi-sion requiring dismissal for failure to givenotice ″as required″).

Having determined that the service deadline isdirectory, we next determine the proper con-sequences for TJFA’s failure to strictlycomply.2See Texas Dep’t of [*741] Pub.Safety v. Dear, 999 S.W.2d 148, 152 (Tex. App.—Austin 1999, no pet.) (noting that when stat-ute is directory, if ″act is performed, but notin the time or in the precise mode indicated, itwill be still be sufficient, if that which isdone accomplishes the substantial purpose ofthe statute″); cf. Reese v. Duncan, 80 S.W.3d650, 658 (Tex. App.—Dallas 2002, pet. de-nied) (noting that when statute is mandatorywhether there was substantial compliance is notrelevant). When, as in this case, a statute is si-lent about the consequences of noncompli-ance, we look to the statute’s purpose to deter-mine the proper consequences. Helena Chem.Co, 47 S.W.3d at 494; Hines v. Hash, 843S.W.2d 464, 468 (Tex. 1992).

A similar issue, regarding the proper conse-quences for noncompliance with a statutory no-tice requirement, was recently addressed bythe Texas Supreme Court in Roccaforte v. Jef-ferson County, 341 S.W.3d at 926-27. In thatcase, the supreme court held that the plain-tiff’s failure to deliver notice of suit to county of-

1 In contrast, filing deadlines, such as the deadline to file a petition [**40] set forth in subsection 361.321(c), seek to set atime limit on a party’s ability to invoke the court’s subject-matter jurisdiction over the controversy. SeeTex. Health & Safety CodeAnn. § 361.321(c) (West 2010); Hughes v. Atlantic Ref. Co., 424 S.W.2d 622, 625 (Tex. 1968).

2 Even [**42] assuming that subsection 361.321(c)’s service deadline is mandatory, I disagree that the appropriate conse-quence for noncompliance is necessarily dismissal of the suit. While the failure to comply with a nonjurisdictional requirement man-dated by statute may result in the loss of a claim, the Texas Supreme Court has recognized that noncompliance with a manda-tory statutory requirement does not necessarily require dismissal in all cases. See University of Tex. Sw. Med. Ctr. v. Loutzenhiser,140 S.W.3d 351, 360 (Tex. 2003) (″The failure of a non-jurisdictional requirement mandated by statute may result in the loss ofa claim . . . .″); but see Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961-62 (Tex. 1999) (noting that failure to comply with man-datory notice provision under worker’s compensation law did not require dismissal of action for judicial review); Hines v. Hash,843 S.W.2d 464, 468-69 (Tex. 1992) (noting that purpose of mandatory, presuit notice requirement under deceptive trade prac-tices act does not require dismissal 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 forfeiture case hearing within [**43] statutorily required 30-day period did not require dis-missal, explaining ″[T]he issue is not whether ’shall’ is mandatory, but what consequences follow a failure to comply.″).

368 S.W.3d 727, *740; 2012 Tex. App. LEXIS 3594, **39

ficials by mail, an express statutory require-ment, did not require dismissal of the suit againstthe county.3Id. Instead, the court recognizedthat the purpose of the notice provision was toensure that ″county officials are made awareof pending suits, allowing the county to an-swer and defend the case,″ and that this pur-pose was served where the plaintiff gave no-tice to county officials by hand delivery. Id.

As previously discussed, the purpose of the stat-ute in this case is to allow for the review ofCommission decisions, while the purpose of theservice deadline set forth in subsection361.321(c) is to ensure that the Commission re-ceives prompt notice of the suit so that it mayanswer and prepare a defense. The statute doesnot indicate that termination of the plaintiff’ssubstantive rights for late service is required orthat the purpose of the service deadline isbest served by such termination. See State v.$435,000.00, 842 S.W.2d 642, 644 (Tex. 1992)(″If the Legislature had intended dismissal tobe the consequence of a failure to hear a forfei-ture case within the prescribed period, itcould easily have said so . . . .″). Instead, likeRoccaforte, the substantial purpose of the stat-ute may be accomplished without requiring au-tomatic dismissal of the suit.

It is undisputed that TJFA timely filed suit for ju-dicial review and that notice of the suit was e-mailed to the Commission the same day.Thus, the Commission had actual notice of TJ-FA’s suit, enabling it to [**45] answer and

prepare a defense. Further, while service wasformally effected eleven days after the dead-line, TJFA presented evidence that its failure toeffect service sooner was due to a misunder-standing on the part of trial counsel and a pos-sible error by the district clerk. Specifically,TJFA presented evidence that counsel for TJFAincorrectly believed that electronic filingwould also accomplish service of the citationand that it did not ″receive[] notice [*742] ofthe Original Petition’s readiness for servicevia First Class mail″ until the statutory dead-line for service had already passed.4 Upon learn-ing that the Commission had not received ser-vice of citation, TJFA immediately effectedformal service.

Under [**46] these circumstances, I would con-clude that TJFA substantially complied withthe service deadline set forth in subsection361.321(c), such that the substantial purpose ofthe statutory deadline was met and the Com-mission was not prejudiced as a result of the de-lay. See Roccaforte, 341 S.W.3d at 926. Ac-cordingly, I would reverse the trial court’sjudgment granting the Commission’s motion todismiss and remand this cause to the trialcourt for further proceedings consistent withthis opinion.

Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear,Pemberton, Henson, Rose and Goodwin

Filed: May 4, 2012

3 The statutory provision at issue in Roccaforte v. Jefferson County, section 89.0041 of the local government code, also pro-vides that ″[i]f a person does not give notice as required by this section, the court in which the suit is pending shall dismiss thesuit on a motion for dismissal made by [**44] the county or the county official.″ 341 S.W.3d 919, 925 (Tex. 2011); seeTex. Loc.Gov’t Code Ann. § 89.0041(c) (West 2008).

4 In Police Civil Service Commission v. Gutierrez, this Court recognized that late service of citation in a suit for judicial reviewof an administrative decision does not necessarily result in dismissal of the suit. 182 S.W.3d 430, 432 (Tex. App.—Austin2005, no pet.). Instead, we held that the date of service of citation relates back to the date of plaintiff’s filing suit for judicial re-view, and thus is timely, when the plaintiff exercises due diligence in effecting service. Id.

368 S.W.3d 727, *741; 2012 Tex. App. LEXIS 3594, **41

CAUSE NO.: DC-12-10604

MELISSA KINGSTON, § IN THE DISTRICT COURT

§

Plaintiff, §

§

v. § DALLAS COUNTY, TEXAS

§

AVI ADELMAN, §

§

Defendant. § 44th

JUDICIAL DISTRICT

ORDER ON PLAINTIFF’S MOTIONS TO PROCEED WITH DISCOVERY

On February 28, 2013, the Court considered Plaintiff’s Motion to Proceed with Discovery

and Plaintiff’s Supplemental Motion to Proceed with Discovery. After consideration of the

motions, the evidence, argument of counsel, and supplemental briefs filed, the Court finds

Plaintiff’s motions should be and are hereby DENIED.

The Court finds it has jurisdiction to hear Defendant’s Anti-S.L.A.P.P. Motion to

Dismiss, and is therefore ORDERED that the hearing on said motion currently on the Court’s

docket for 10:00 a.m. on March 4, 2013, shall proceed as scheduled.

IT IS SO ORDERED.

SIGNED and ENTERED on this ______ day of March, 2013.

______________________________

JUDGE CARLOS CORTEZ

44th

JUDICIAL DISTRICT COURT

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3-2 Brief in Opposition to Motion to Proceed With Discovery

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