CAUSE NO.: DC-12-10604 MELISSA KINGSTON, Plaintiff, v. AVI ADELMAN, Defendant.

IN THE DISTRICT COURT

DALLAS COUNTY, TEXAS

44th JUDICIAL DISTRICT

DEFENDANTS SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS MOTIONS TO PROCEED WITH DISCOVERY

TO THE HONORABLE JUDGE CARLOS CORTEZ: Pursuant to the Courts 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 Courts 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

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 Courts goal should be to ascertain legislative intent by examining the statutes 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).

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). Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). TEX. CIV. PRAC. & REM. CODE 27.011(b). 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 bill8

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

Legislatures 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). TEX. GOVT CODE 311.021(3); See also Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).
9

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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 Courts 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 Defendants motion a full hearing. 10. Absent such a showing, and based on the Texas Supreme Courts jurisprudence on construing statutes to be jurisdictional, the Court should find it does have jurisdiction to consider Defendants 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).

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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. mandatory. There is a difference between statutory language being directory versus 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 defendants 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 doesnt 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 Acts objective, and there is no legislative history indicating Section 27.004 was intended to be used by plaintiffs 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 Plaintiffs Supplemental Motion to Proceed with Discovery, find the Court has jurisdiction to hear Plaintiffs Anti-S.L.A.P.P. Motion to Dismiss, and continue with the full hearing on Defendants 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 Marys Street, Suite 255 San Antonio, Texas 78205 (210) 354-2300 phone (800) 761-5782 facsimile Justin@TheNicholsLawFirm.com ATTORNEY FOR DEFENDANT -6-

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

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Document(1)
1. Albertsons, Inc. v. Sinclair, 984 S.W.2d 958 Client/matter: Adelman

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Caution As of: March 1, 2013 1:09 PM EST

Albertsons, 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 petition to the commission. Employer filed a motion to dismiss the judicial review action, alleging that because the commission did not receive the petition within forty days of the Appeals Panels decision, the filing with the commission was untimely under Tex. Lab. Code Ann. 410.253. The trial court dismissed the judicial review action for want of jurisdiction. The appellate court reversed the trial courts judgment, and the employer appealed. The court concluded that 410.253 required petitioner for judicial review of a Appeals Panel decision to file a copy of petition with commission on the same day it filed a petition with the trial court. The mailbox rule applied to 410.253 filings in subchapter G judicial review actions. Further, compliance with 410.253, while mandatory, was not jurisdictional. The court affirmed the judgment. Outcome The judgment was affirmed. The court held that a party must file a copy of its petition for judicial review with the Texas Workers Compensation Commission on the same day that the party filed its petition in the trial court and that the mailbox rule applied. Further, untimely filing with the commission did not deprive the trial court of jurisdiction.
LexisNexis Headnotes Civil Procedure > Preliminary Considerations > Venue > General Overview Civil Procedure > Pleading & Practice > Motion Practice > General Overview Civil Procedure > Parties > Intervention > Time Limitations Workers Compensation & SSDI > ... > Claims > Stat-

ALBERTSONS, INC., PETITIONER CHARLES SINCLAIR, RESPONDENT

v.

Prior History: [**1] ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS. Disposition: Albertsons petition for review granted and the court of appeals judgment affirmed.
Core Terms

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

Procedural Posture Employer petitioned for review from a decision of the Court of Appeals for the Sixth District of Texas, which determined that workers filing of petition for review with Texas Workers Compensation Commission was timely because the mailbox rule applied to Tex. Lab. Code Ann. 410.253 filings. Overview An employee filed a claim against his employer with Texas Workers Compensation Commission. The commission and an Appeals Panel ruled for employer. The employee petitioned for judicial review under Texas Labor Code subchapter G and mailed a copy of the

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

the same time. The court cannot construe simultaneous to mean any time within the same forty days. The plain meaning of simultaneous and common sense dictate that the court construe Tex. Lab. Code Ann. 410.253 to reHN1 The Labor Code provides for judicial re- quire a party to file its judicial review petition with the Texas Workers Compensation view of a Texas Workers Compensation Commission Appeals Panel decision. Tex. Lab. Code Commission and with the trial court on the same day. Ann. 410.251. Subchapter F contains general provisions for judicial review. A party may seek Workers Compensation & SSDI > Administrative Projudicial review by filing suit not later than the ceedings > Judicial Review > General Overview 40th day after the date on which the decision of Workers Compensation & SSDI > ... > Judicial Rethe appeals panel was filed with the division. view > Standards of Review > General Overview Tex. Lab. Code Ann. 410.252(a). A copy of the Workers Compensation & SSDI > Benefit Determinapetition shall be simultaneously filed with the tions > Death Benefits court and the commission and served on any opHN4 Although subchapter G does not exposing party. Tex. Lab. Code Ann. 410.253. On timely motion initiated by the executive di- pressly incorporate the Rules of Civil Procedure, the legislature specified in section 410.305 rector, the commission shall be permitted to intervene in any judicial proceeding under this that when subchapter G conflicts with the Texas Rules of Civil Procedure, subchapter G subchapter or Subchapter G. Tex. Lab. Code controls. Tex. Lab. Code Ann. 410.305. SecAnn. 410.254. tion 410.305 evinces the legislatures intent that the Rules of Civil Procedure control unCivil Procedure > Appeals > Standards of Review > De Novo Review less they conflict with subchapter G. Whether Workers Compensation & SSDI > Administrative Pro- Texas Rule of Civil Procedure 5 conflicts with ceedings > Judicial Review > General Overview Commission Rule 102.7 is irrelevant. BeWorkers Compensation & SSDI > Benefit Determinacause Rule 5 does not conflict with subchapter tions > Death Benefits G, it applies to subchapter G judicial review actions. HN2 Subchapter G provides a modified trial de novo procedure that applies only to judicial Governments > Legislation > Interpretation review actions involving compensability or Workers Compensation & SSDI > Administrative Proeligibility for or the amount of income or death ceedings > Judicial Review > General Overview benefits. Tex. Lab. Code Ann. 10.301. Subchapter G also dictates that when the Texas HN5 The court generally construe the word Rules of Civil Procedure conflict with the pro- shall as mandatory, unless legislative intent cedures in subchapter G, subchapter G consuggests otherwise. In determining whether the trols. Tex. Lab. Code Ann. 410.305. legislature intended a provision to be mandatory or directory, the court considers the plain Governments > Legislation > Interpretation meaning of the words used, as well as the enWorkers Compensation & SSDI > Administrative Protire act, its nature and object, and the conseceedings > Judicial Review > General Overview quences that would follow from each conWorkers Compensation & SSDI > ... > Judicial Review > Standards of Review > General Overview struction. Generally, courts construe a statutory provision as mandatory when the power or HN3 In construing a statute, the courts objec- duty to which it relates is for the public good. tive is to determine and give effect to the legislatures intent. The court accomplishes that Civil Procedure > ... > Jurisdiction > Jurisdictional purpose, first, by looking to the statutes Sources > Statutory Sources Governments > Legislation > Interpretation plain and common meaning. In ordinary usage, Workers Compensation & SSDI > Administrative Prosimultaneous means existing or occurring at
ute of Limitations > General Overview Workers Compensation & SSDI > Administrative Proceedings > Judicial Review > General Overview Workers Compensation & SSDI > ... > Judicial Review > Standards of Review > General Overview

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

ceedings > Evidence > Witnesses Workers Compensation & SSDI > Administrative Proceedings > Judicial Review > General Overview Workers Compensation & SSDI > Benefit Determinations > Dependents

Tex. Lab. Code Ann. 410.253 does not require dismissing the judicial review action for failure to timely file with the Texas Workers Compensation Commission.
Workers Compensation & SSDI > Administrative Proceedings > Judicial Review > General Overview Workers Compensation & SSDI > ... > Judicial Review > Standards of Review > General Overview

HN6 Just because a statutory requirement is mandatory does not mean that compliance with it is jurisdictional. When the statute is silent about consequences of noncompliance, the court looks to the statutes purpose in determining the proper consequence of noncompliance. Further, the court liberally construes workers compensation legislation to carry out its evident purpose of compensating injured workers and their dependents.

HN9 Tex. Lab. Code Ann. 410.253 requires a petitioner for judicial review of a Texas Workers Compensation Commission Appeals Panel decision to file a copy of the petition with the Texas Workers Compensation Commission on the same day it files the petition with the trial court. The mailbox rule applies to 410.253 filCivil Procedure > Pleading & Practice > Motion Prac- ings in subchapter G judicial review actions. tice > General Overview Compliance with 410.253, while mandatory, Civil Procedure > Pleading & Practice > Motion Pracis not jurisdictional. tice > Time Limitations
Civil Procedure > Parties > Intervention > General Overview Civil Procedure > Parties > Intervention > Motions to Intervene Civil Procedure > Parties > Intervention > Intervention of Right Civil Procedure > Parties > Intervention > Time Limitations Workers Compensation & SSDI > Administrative Proceedings > Judicial Review > General Overview Opinion

[*959] Per Curiam

We consider three issues in this petition for review: (1) when is a party, who seeks judicial review of a Texas Workers Compensation Commission Appeals Panel decision, required to HN7 The plain meaning of shall supports a mandatory construction of section 410.253s si- file a copy of its petition with the Commission under the Texas Labor Code section 410.253; multaneous filing requirement. (2) whether the mailbox rule 1 applies to section 410.253 filings in judicial review actions Civil Procedure > ... > Pleadings > Comunder Texas Labor Code chapter 410, subchapplaints > Prelitigation Notices Governments > Legislation > Interpretation ter G; 2 and (3) whether an untimely section Workers Compensation & SSDI > Administrative Pro- 410.253 filing with the Commission deprives the ceedings > Judicial Review > General Overview trial court of jurisdiction over the judicial reWorkers Compensation & SSDI > ... > Judicial Review action. We hold that section 410.253 review > Standards of Review > General Overview quires a party to file a copy of its petition for judicial review with the Commission on the HN8 The liberal construction the court must give workers compensation laws precludes a ju- same day that the party files its petition in the trial court and that the mailbox rule applies to risdictional interpretation. The purpose behind section 410.253 filings in subchapter G judi1

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 and stamped 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 ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.
2

SeeTEX. LAB. CODE 410.301-.308.

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

cial review actions. SeeTEX. R. CIV. P. 5. We also hold that untimely filing with the Commission under section 410.253 does not deprive the trial court of jurisdiction. [**2] Accordingly, we affirm the court of appeals judgment remanding the case to the trial court for further proceedings. Charles Sinclair filed a compensation claim against Albertsons, Inc. with the Texas Workers Compensation Commission for an alleged work-related injury. Albertsons contested the compensability of the injury. A Commission hearing officer and an Appeals Panel ruled for Albertsons. The fortieth day after the Appeals Panels decision was a Sunday. [**3] The next day, Sinclair filed a petition with the trial court for judicial review under Texas Labor Code subchapter G and mailed a copy of the petition to the Commission. The Commission received the petition two days later. Albertsons moved to dismiss the judicial review action, alleging that because the Commission did not receive Sinclairs petition within forty days of the Appeals Panels decision, Sinclairs filing with the Commission was untimely under section 410.253. See TEX. LAB. CODE 410.253. The trial court dismissed the judicial review action for want of jurisdiction. [*960] The court of appeals reversed the trial courts judgment, concluding that Sinclairs filing with the Commission was timely because the mailbox rule applies to section 410.253 filings. 975 S.W.2d 662. The court of appeals also held that section 410.253s timely filing requirement was directory, not mandatory or jurisdictional.

TEX. LAB. CODE 410.252(a). Service A copy of the petition shall be simultaneously filed with the court and the commission and served on any opposing party. TEX. LAB. CODE 410.253. Commission Intervention On timely motion initiated by the executive director, the commission shall be permitted to intervene in any judicial proceeding under this subchapter or Subchapter G. TEX. LAB. CODE 410.254. In addition, HN2 subchapter G provides a modified trial de novo procedure that applies only to judicial review actions involving compensability or eligibility for or the amount of income 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 Commn v. Garcia, 893 S.W.2d 504, 515 (Tex. 1995). Subchapter G also dictates that when the Texas Rules of Civil Procedure conflict with the procedures in subchapter G, subchapter G controls. SeeTEX. LAB. CODE 410.305.

Albertsons asserts that section 410.253 requires a petitioner for judicial review to [**5] furnish the Commission a copy of the petition for judicial review any time within section 410.252s forty-day time period for filing the HN1 The Labor Code provides for judicial re- petition. SeeTEX. LAB. CODE 410.252-.253. We disagree. HN3 In construing a statute, view of an Appeals Panel decision. SeeTEX. LAB. CODE 410.251. Subchapter F contains our objective is to determine and give effect to the Legislatures intent. See Liberty Mut. Ins. general provisions for judicial review, includCo. v. Garrison Contractors, Inc., 966 S.W.2d ing: 482, 484 (Tex. 1998). We accomplish that purpose, first, by looking to the statutes plain and Time for Filing Petition; Venue common meaning. See Garrison, 966 S.W.2d A party may seek judicial review by filing suit at 484. In ordinary usage, simultaneous means not [**4] later than the 40th day after the existing or occurring at the same time. See date on which the decision of the appeals panel Websters Third New International Dictionary was filed with the division. (1969). We cannot construe simultaneous to mean any time within the same forty days.

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

The plain meaning of simultaneous and common sense dictate that we construe section 410.253 to require a party to file its judicial review petition with the Commission and with the trial court on the same day. Albertsons also argues that Commission Rule 102.7 precludes applying the mailbox rule to Commission filings under section 410.253. Again, we disagree. Commission Rule 102.7 dictates that documents are timely filed only if the Commission receives [**6] them before or during business hours on the last permissible day to file. See28 TEX. ADMIN. CODE 102.7. However, Rule 102.7 applies unless otherwise specified in the Act or rules. 28 TEX. ADMIN. CODE 102.7. The Legislature specified in the Workers Compensation Act that judicial review actions involving compensability or eligibility for or the amount of income or death benefits shall be conducted as provided by [subchapter G]. TEX. LAB. CODE 410.301. HN4 Although subchapter G does not expressly incorporate the Rules of Civil Procedure, the Legislature specified in section 410.305 that when subchapter G conflicts with the Texas Rules of Civil Procedure, subchapter G controls. SeeTEX. LAB. CODE 410.305. Section 410.305 evinces the Legislatures intent that the Rules of Civil Procedure control unless they conflict with subchapter G. Whether Texas Rule of Civil Procedure 5 conflicts with Commission Rule 102.7 is irrelevant. Because [*961] Rule 5 does not conflict with subchapter G, it applies to subchapter G judicial review actions. Sinclair timely filed his petition with the Commission by sending it to the Commission by first-class United States mail on the day it was [**7] due. Lastly, Albertsons argues that section 410.253s requirement is mandatory and that failure to comply deprives the trial court of jurisdiction over the judicial review action. The court of appeals held that section 410.253 was directory. We conclude that simultaneously filing with the trial court and the Commission is mandatory 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). In determining whether the Legislature intended a provision to be mandatory or directory, we 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. See Schepps, 652 S.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 provision as mandatory when the power or duty to which it relates is for the public good. See State v. City of Greenville, 726 S.W.2d 162, 169 (Tex. App.--Dallas 1986, writ refd n.r.e.). HN6 Further, just because a statutory requirement is mandatory does not mean [**8] that compliance with it is jurisdictional. See, e.g., Hines v. Hash, 843 S.W.2d 464, 467 (Tex. 1992). When the statute is silent about consequences of noncompliance, we look to the statutes purpose in determining the proper consequence of noncompliance. See Hines, 843 S.W.2d at 468; Schepps, 652 S.W.2d at 938. Further, we liberally construe workers compensation legislation to carry out its evident purpose of compensating injured workers and their dependents. See Lujan v. Houston Gen. Ins. Co., 756 S.W.2d 295, 297 (Tex. 1988); Ward v. Charter Oak Fire Ins. Co., 579 S.W.2d 909, 910 (Tex. 1979). HN7 The plain meaning of shall supports a mandatory construction of section 410.253s simultaneous filing requirement. Moreover, section 410.253s duty to simultaneously serve the Commission relates to the public good. Section 410.254 gives the Commission a right to intervene upon a timely motion in a suit seeking judicial review of a Commission decision. SeeTEX. LAB. CODE 410.254. Section 410.253s obvious purpose is to enable the Commission to exercise this right. SeeTEX. LAB. CODE 410.254; see also SENATE COMM. OF ECONOMIC DEVELOPMENT, BILL ANALYSIS, [**9] Tex. H.B. 3137, 75th Leg., R.S.(1997)(stating that the purpose of a similar notice provision, Texas Labor Code section 410.258, is to ensure that the Commission has notice and an opportunity to intervene in a

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

workers compensation lawsuit to explain why a judgment or settlement should not be approved by a court). Commission intervention is desirable because it enables the Commission to offer consistent substantive interpretation of workers compensation laws. See Joint Select Committee on Workers Compensation Insurance, A Report to the 71st Legislature 4 (1988). The Commission, as amicus curiae, argues that intervention is often necessary to oppose the parties efforts to circumvent statutory provisions and to protect the Commissions Subsequent Injury Fund. Again, common sense dictates that, to evaluate whether intervention in a judicial review action is necessary and, if necessary, to timely intervene in the action, the Commission needs prompt notice that a lawsuit has been filed. Therefore, we hold that section 410.253s simultaneous filing requirement is mandatory.

court can abate the judicial review action as necessary.

Moreover, that section 410.253 does not dictate the consequence of noncompliance is significant when considering the entire statute. Section 410.258 requires the petitioner in a judicial review proceeding to provide the Commission a proposed judgment or settlement not later than the [**11] thirtieth day before the court is scheduled to enter the judgment or approve the settlement. SeeTEX. LAB. CODE 410.258(a). Subsection 410.258(b) provides the Commission yet another opportunity to intervene, up to the thirtieth day after receiving the proposed judgment or settlement. SeeTEX. LAB. CODE 410.253(b). Importantly, subsection 410.258(f) provides that a judgment entered or settlement approved without complying with section 410.258s requirements is void. SeeTEX. LAB. CODE 410.258(f). That the Nevertheless, HN8 the liberal construction we Legislature could have but did not similarly promust give workers compensation laws pre- vide a consequence for noncompliance with section 410.253 suggests that it chose not to do cludes a jurisdictional [**10] interpretation. See Lujan, 756 S.W.2d at 297; Ward, 579 S.W.2d so. See Chisolm, 287 S.W.2d at 945. at 910. The purpose behind section 410.253 does not require dismissing the judicial review Therefore, we hold that HN9 section 410.253 requires a petitioner for judicial review of a action for failure to timely file with the Commission. Accord Hines, 843 S.W.2d at 468-69 Texas Workers Compensation Commission Appeals Panel decision to file a copy of the peti(noting that it is not necessary to the purpose of the Deceptive Trade Practices Acts presuit tion with the Commission on the same day it files the petition with the trial court. We hold notice provision to [*962] dismiss the plaintiffs action if notice is not timely provided); that the mailbox rule applies to section 410.253 filings in subchapter G judicial review acSchepps, 652 S.W.2d at 938 (noting that it is not necessary to the purpose of the Medical Li- tions. We also hold that compliance with section 410.253, while mandatory, is not jurisdicability and Insurance Improvement Acts presuit notice provision to dismiss plaintiffs ac- tional. Accordingly, without hearing oral [**12] argument, we grant Albertsons petion if notice is not timely provided). Section tition for review and affirm the court of ap410.254 gives the Commission a statutory right peals judgment.SeeTEX. R. APP. P. 59.1 to intervene. SeeTEX. LAB. CODE 410.254. If the Commission receives late notice and reOPINION DELIVERED: February 4, 1999 quires additional time to intervene, the trial

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Document(1)
1. City of Desoto v. White, 288 S.W.3d 389 Client/matter: Adelman

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Positive As of: March 1, 2013 1:24 PM EST

City of Desoto v. White

Supreme Court of Texas 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 Overview After being suspended, the city failed to inform the officer of an appeal limitation under Tex. Loc. Govt Code Ann. 143.057(a). The officer sued and the trial court found that the examiner lacked jurisdiction to hear the officers appeal. The appellate court affirmed, finding that the notice requirement was jurisdictional. The court disagreed and reversed. The citys failure to provide the mandatory notice under 143.057(a) did not deprive the hearing examiner of jurisdiction to hear a police officers appeal. The officer declined the chance to change his election. Generally, the court would hold that he waived any complaint because he had full knowledge of the appeal limitation under 143.057(j), but the court recognized that the officer could have been relying on case laws strict enforcement of the 10-day election deadline in Tex. Loc. Govt Code Ann. 143.010(a). Thus, the officer was to be given a chance to make a new election, given the same policy reasons behind Tex. Civ. Prac. & Rem. Code Ann. 16.064. The court remanded the case to the trial court with instructions to remand to the hearing examiner so the officer had an opportunity to make an appellate election. Outcome The court reversed the appellate courts judgment. The court remanded the case to the trial court with instructions to remand to the hearing examiner so the officer had an opportunity to make an appellate election.
LexisNexis Headnotes

CITY OF DESOTO, TEXAS, PETITIONER, v. JUSTIN WHITE, RESPONDENT Prior History: [**1] ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS. City of DeSoto v. White, 232 S.W.3d 379, 2007 Tex. 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 service rule, invoke, notice provision, civil service, disciplinary action, pre-suit, waived, written statement, appellate rights, tribunal, legislative intent, department head, noncompliance, notify, prerequisite, omission, collusion
Case Summary

Procedural Posture Respondent police officer sued petitioner city, arguing that a hearing examiner, who upheld the officers suspension, lacked jurisdiction to hear his appeal. The trial court agreed and granted the officer summary judgment and fees and ordered his reinstatement. The Court of Appeals for the Fifth District of Texas affirmed, holding that the notice requirement under Tex. Loc. Govt Code Ann. 143.057(a) was jurisdictional. The city sought review.

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

Fire Fighters and Police Officers Civil Service Commission, or an independent thirdparty hearing examiner. Tex. Loc. Govt Code Ann. 143.010, 143.053, 143.057(b). If the officer appeals to the Commission, the officer may seek review of the Commissions decision HN1 A police officer who has been suspended with a district court, which conducts a de from duty has a right to appeal that action to novo review. Tex. Loc. Govt Code Ann. either a civil service commission or to an inde- 143.015(b). However, if the officer appeals to pendent, third-party hearing examiner. If the a hearing examiner, the officer waives subseofficer appeals to a hearing examiner, his abil- quent review by a district court, Tex. Loc. ity to seek further review in a district court Govt Code Ann. 143.057(c), except on the is severely limited. The pre-appeal notice provi- grounds that the hearing examiner was without sion is not jurisdictional. jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, colluAdministrative Law > Judicial Review > Reviewabilsion, or other unlawful means. Tex. Loc. Govt ity > General Overview Code Ann. 143.057(j). HN2 Tex. Loc. Govt Code Ann. 143.057(j) Administrative Law > Agency Adjudication > Review permits judicial review of a hearing examiner of Initial Decisions decision on grounds that the examiner was Civil Procedure > ... > Subject Matter Jurisdicwithout jurisdiction. tion > Jurisdiction Over Actions > General Overview
Administrative Law > Agency Adjudication > Review of Initial Decisions Civil Procedure > ... > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Governments > Local Governments > Employees & Officials Administrative Law > Agency Adjudication > Review of Initial Decisions Civil Procedure > ... > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Governments > Local Governments > Employees & Officials Governments > Local Governments > Employees & Officials

HN3 Notice of the appeal limitation as required by Tex. Loc. Govt Code Ann. 143.057(a) is not jurisdictional.
Administrative Law > Agency Adjudication > Review of Initial Decisions Administrative Law > Judicial Review > Reviewability > General Overview Administrative Law > Judicial Review > Standards of Review > De Novo Standard of Review Governments > Local Governments > Employees & Officials

HN5 The Local Government Code distinguishes between municipalities with a population of less than 1.5 million, and those with a population of 1.5 million or more. While there are some differences between the two schemes, the appellate process provisions are similar. Thus, the courts holding with regard to the non-jurisdictional nature of the notice provision applies with equal force under each scheme.
Administrative Law > Agency Adjudication > Review of Initial Decisions Governments > Local Governments > Employees & Officials

HN4 Tex. Loc. Govt Code Ann. ch. 143, known as the Fire Fighter and Police Officer Civil Service Act, outlines the disciplinary process by which a municipality may suspend an officer and how that officer may appeal the suspension. Tex. Loc. Govt Code Ann. 143.051 -.057. A police department may suspend an officer for a violation of civil service rules. Tex. Loc. Govt Code Ann. 143.052(b). The officer may then appeal the suspension to either the

HN6 Tex. Loc. Govt Code Ann. 143.057(j) uses the term arbitration panel, rather than hearing examiner. Tex. Loc. Govt Code Ann. 143.057(c). However, the court has noted that arbitration panel is synonymous with hearing examiner in this context.
Administrative Law > Agency Adjudication > Review of Initial Decisions Administrative Law > Judicial Review > Reviewability > General Overview Governments > Local Governments > Employees & Of-

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

ficials

HN7 The Local Government Code specifies how the officer makes an appellate election. Within 120 hours of the suspension, the department head shall file a written statement with the commission giving the reasons for the suspension, and also immediately deliver a copy of the statement to the suspended officer. Tex. Loc. Govt Code Ann. 143.052(c). The statement, also referred to as a letter of disciplinary action, must point out each civil service rule alleged to have been violated and must describe the alleged acts of the person that the department head contends are in violation of the civil service rules. Tex. Loc. Govt Code Ann. 143.052(e). It must inform the suspended officer that if he chooses to appeal, he must file a written appeal within 10 days of receiving the letter, 143.052(d), and that he may elect to appeal to an independent third party hearing examiner instead of to the commission. Tex. Loc. Govt Code Ann. 143.057(a). The letter must also inform the officer that if he elects to appeal to a hearing examiner, he waives all rights to appeal to a district court, 143.057(a), except on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. Tex. Loc. Govt Code Ann. 143.057(j).
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tion > Jurisdiction Over Actions > General Overview Civil Procedure > Judgments > Relief From Judgments > General Overview Governments > Legislation > Interpretation

HN10 The failure of a jurisdictional requirement deprives the court of the power to act (other than to determine that it has no jurisdiction), and ever to have acted, as a matter of law. If the requirement is not jurisdictional, however, the tribunal may hear the case, although other consequences may flow from a partys failure to comply with the requirement. The failure of a non-jurisdictional requirement mandated by statute may result in the loss of a claim, but that failure must be timely asserted and compliance can be waived. Deeming a provision jurisdictional opens the way to making judgments vulnerable to delayed attack for a variety of irregularities that perhaps better ought to be sealed in a judgment. The modern direction of policy is to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction. Because of these consequences, the court has been reluctant to conclude that a provision is jurisdictional, absent clear legislative intent to that effect. Although the Legislature subsequently provided that the notice requirement at issue in case law was jurisdictional, the courts reasoning with regard to statutory analysis of alleged jurisdictional provisions reGovernments > Local Governments > Employees & Of- mains valid.
Administrative Law > Agency Adjudication > Presiding Officers > General Overview Administrative Law > Separation of Powers > Jurisdiction Civil Procedure > ... > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Civil Procedure > Judgments > Relief From Judgments > General Overview Governments > Legislation > Interpretation

HN8 The Texas Local Government Code refers to a written statement and a letter of disciplinary action. These terms appear to refer to the same document.
Administrative Law > Agency Adjudication > Review of Initial Decisions Governments > Local Governments > Employees & Officials

HN11 The court has adopted an approach to jurisdictional questions designed to strengthen fiHN9 An officer working for a municipality nality and reduce the possibility of delayed atwith a population of 1.5 million or more has 15 tacks on judgments, regardless of whether the days to file an appeal. Tex. Loc. Govt Code claim was anchored in common law or was Ann. 143.1015(a). a specially-created statutory action. The court recognizes that a hearing examiner is a tribunal Civil Procedure > ... > Subject Matter Jurisdicof 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. Govt Code Ann. 143.057. But even though the examiner hears a limited type of case, consistent with case law, the courts focus is to avoid a result that leaves the decisions and judgments of the hearing examiner in limbo and subject to future attack, unless that was the Legislatures clear intent.
Administrative Law > Agency Adjudication > Review of Initial Decisions Administrative Law > Judicial Review > Reviewability > General Overview Civil Procedure > ... > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Evidence > Inferences & Presumptions > Presumptions Governments > Local Governments > Employees & Officials

tional, one must ask, in trying to determine legislative intent, whether the Legislature intended those consequences.
Civil Procedure > ... > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Governments > Legislation > Interpretation

HN14 The court considers a number of factors in determining whether the Legislature intended that a provision be jurisdictional. But, as with any statute, the court begins with the text.
Administrative Law > Agency Adjudication > Review of Initial Decisions Administrative Law > Judicial Review > Reviewability > General Overview Governments > Local Governments > Employees & Officials

HN12 The court is not convinced that a delayed attack on an administrative judgment is an illusory concern. There remain courts and administrative tribunals staffed by judges untrained in law or whose jurisdiction is so narrow as to be nearly ministerial. The opportunity to challenge subject matter jurisdiction in such a forum may therefore be inadequate. When this is so, a challenge to subject matter jurisdiction may properly be permitted through subsequent attack on the judgment. Consistent with case law, then, the court begins with the presumption that the Legislature did not intend to make the notice under Tex. Loc. Govt Code Ann. 143.057(a) jurisdictional; a presumption overcome only by clear legislative intent to the contrary.
Civil Procedure > ... > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Civil Procedure > Appeals > Standards of Review > De Novo Review Governments > Legislation > Interpretation

HN15 See Tex. Loc. Govt Code Ann. 143.057(a).

Administrative Law > Agency Adjudication > Review of Initial Decisions Administrative Law > Judicial Review > Reviewability > General Overview Governments > Local Governments > Employees & Officials

HN16 See Tex. Loc. Govt Code Ann. 143.057(j).

Administrative Law > Agency Adjudication > Review of Initial Decisions Administrative Law > Judicial Review > Reviewability > General Overview Governments > Legislation > Interpretation Governments > Local Governments > Employees & Officials

HN17 Tex. Loc. Govt Code Ann. 143.057(a) clearly requires that the letter notify the officer of the appeal limitation. It provides that the letter must inform the officer of the limitaHN13 To determine whether a statutory require- tion. Tex. Loc. Govt Code Ann. 143.057(a). ment is jurisdictional, the court applies statuThe Code Construction Act explains that must tory interpretation principles. As with any statu- creates or recognizes a condition precedent, tory provision, the courts goal is to ascertain Tex. Govt Code Ann. 311.016(3), and the court legislative intent by examining the statutes plain has recognized that must generally means language. The appellate court reviews this mandatory. The rest of the Texas Local Governstatutory interpretation question de novo. Since ment Code and its apparent objective also inthe Legislature is bound to know the consedicate this provision is mandatory. To deterquences of making a requirement jurisdic-

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mine whether the Legislature intended a provision to be mandatory or directory, the court considers 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. The Code establishes two alternative means for officers to appeal: to the commission or to the hearing examiner. Tex. Loc. Govt Code Ann. 143.053,.057. These two avenues of appeal, however, diverge on the right to further judicial review. If the officer does not know of these limitations, then the officer is unable to properly assess which appeal route to take. This notice protects the officers appellate rights. Thus, the court holds that the notice provision under 143.057(a) is mandatory.

of sovereign immunity unless the waiver is effected by clear and unambiguous language. Also, the notice requirement in Tex. Loc. Govt Code Ann. 143.057(a) is not a statutory prerequisite to suit. The statute requires notice, but it does not specifically mandate it as a prerequisite to suit or appeal. Thus, the text of the statute does not indicate that the Legislature intended the provision to be jurisdictional.
Administrative Law > Agency Adjudication > Review of Initial Decisions Civil Procedure > ... > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Governments > Legislation > Interpretation Governments > Local Governments > Employees & Officials

HN20 The court has also looked for the presAdministrative Law > Agency Adjudication > Review ence or absence of specific consequences for noncompliance in determining whether a proof Initial Decisions Administrative Law > Judicial Review > Reviewabilvision is jurisdictional. Here, Tex. Loc. Govt ity > General Overview Code Ann. 143.057(a) does not provide a Civil Procedure > ... > Subject Matter Jurisdicspecific consequence for noncompliance. As a tion > Jurisdiction Over Actions > General Overview comparison, Tex. Loc. Govt Code Ann. Governments > Local Governments > Employees & 143.052(e) provides that the letter of disciplinOfficials ary action provided to the officer must point HN18 Just because a statutory requirement is out each civil service rule alleged to have been mandatory does not mean that compliance with violated and must describe the alleged acts. it is jurisdictional. The Texas Local GovernTex. Loc. Govt Code Ann. 143.052(e). Secment Code does not contain any explicit lantion 143.052(f) provides the remedy: If the deguage indicating that this notice of Tex. Loc. partment head does not specifically point out Govt Code Ann. 143.057(a) requirement is in the written statement the act or acts of the pojurisdictional. lice officer that allegedly violated the civil service rules, the commission shall promptly reAdministrative Law > Agency Adjudication > Review instate the person. Tex. Loc. Govt Code Ann. of Initial Decisions 143.052(f). When the Legislature includes a Civil Procedure > ... > Subject Matter Jurisdicright or remedy in one part of a code but omits tion > Jurisdiction Over Actions > General Overview it in another, that may be precisely what the Governments > Legislation > Interpretation Governments > Local Governments > Claims By & Legislature intended, and the court must honor Against that difference. So, the court must assume Governments > Local Governments > Employees & Of- the Legislature did not intend that a dismissal ficials be the consequence for noncompliance. HN19 Tex. Govt Code Ann. 311.034 does Administrative Law > Agency Adjudication > Review not apply to the construction of all statutes. Secof Initial Decisions tion 311.034 specifically addresses waivers of Civil Procedure > ... > Subject Matter Jurisdicsovereign immunity, an issue not implicated tion > Jurisdiction Over Actions > General Overview here. The statute says: In order to preserve Governments > Legislation > Interpretation Governments > Local Governments > Employees & Ofthe Legislatures interest in managing state fisficials cal matters through the appropriations process, a statute shall not be construed as a waiver 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. Govt Code Ann. 143.057(a)s notice requirement is jurisdictional. Reinstating an officer without an adjudication of the very serious allegations against him is troubling, given the vital role of police officers and fire fighters in society, and the need for continued public trust in the exercise of their duties. Under Tex. Govt Code Ann. 311.021(5), in enacting a statute, it is presumed that public interest is favored over any private interest. This cannot be the result the Legislature intended, especially where an interpretation which concludes that the provision is not jurisdictional would still protect the officers appellate rights.

Governments > Legislation > Interpretation

HN24 When the statute is silent as to the consequences for noncompliance, the court looks to the statutes purpose in determining the proper remedy.
Governments > Local Governments > Employees & Officials

HN25 See Tex. Loc. Govt Code Ann. 143.001(a).

Governments > Local Governments > Employees & Officials

HN26 Dismissal of the case and the charges Administrative Law > Agency Adjudication > Review against the officer cannot be the remedy for failure to comply with Tex. Loc. Govt Code of Initial Decisions Ann. 143.057(a). The purpose of Tex. Loc. Administrative Law > Separation of Powers > Jurisdiction Govt Code Ann. 143.001(a) seeking effiCivil Procedure > ... > Subject Matter Jurisdiccient and capable personnel is not served by tion > Jurisdiction Over Actions > General Overview dismissing the case and permitting potentially Governments > Local Governments > Employees & unfit officers to return to the force without a deOfficials termination of the substance of the complaint HN22 The hallmark of a jurisdictional proviagainst them. At the same time, the possibility of sion is that it seeks to assure the appropriate imposing no consequences is troubling, given body adjudicates the dispute. Under the Civil that the required notice is intended to inform the Service Code, only a police officer or fire fighter officer of important appellate rights. The promay invoke the appeals process. Tex. Govt vision is certainly an important one: The LegisCode Ann. 143.010(a), 143.057(a). Thus, latures apparent purpose in enacting the prowhen it comes to invoking the jurisdiction of the vision was to ensure that fire fighters and police commission or hearing examiner, the focus officers are fully aware of a significant consemust always be on the officers actions. A pre- quence that will result if they elect to have an insuit notice requirement is not jurisdictional. dependent hearing examiner, rather than the commission, hear their appeal. Thus, the court Civil Procedure > ... > Subject Matter Jurisdicbelieves the statute requires some remedy.
tion > Jurisdiction Over Actions > General Overview Evidence > Inferences & Presumptions > Presumptions Governments > Courts > Judicial Precedent Administrative Law > Agency Adjudication > Review of Initial Decisions Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Waiver & Preservation of Defenses Governments > Local Governments > Employees & Officials

HN23 Each of certain cases, including City of Temple Firemens and Policemens Civil Service Commission v. Bender, were issued prior to Dubai Petroleum Co. v. Kazi, where the court extended the presumption against jurisdictional findings from common-law claims to statutory actions. The court notes this, not to call into question Benders continuing applicability, but rather, to emphasize the proper focus in this jurisdictional inquiry.

HN27 An abatement is generally appropriate to cure pre-suit notice deficiencies. Abatement, for a reasonable period of time, rather than dismissal, is appropriate remedy until parties meet the pre-suit requirement that they are unable to agree on the amount of damages in a con-

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

demnation proceeding. The court recognizes the statute here, Tex. Loc. Govt Code Ann. 143.057(a), is unique. Normally, the party that eventually files suit is required to provide pre -suit notice. Under the Civil Service Act, however, the City provides notice, and then the officer appeals. The court nonetheless concludes that an abatement is the appropriate remedy because it cures the notice omission: it allows the City to notify an officer of his appellate rights without dismissing a case against a potentially unfit officer, and it allows the officer an opportunity to make an appellate election with full knowledge of the consequences of choosing each path. The court disagrees that the abatement remedy, or a dismissal allowing an officer to make a new election after a city provides the appropriate notice, is precluded by case law. An abatement is appropriate under the Code, as well as under the case law analyses.
Governments > Local Governments > Employees & Officials

143.052(c).
Governments > Local Governments > Employees & Officials

HN31 The 180-day rule is codified at Tex. Loc. Govt Code Ann. 143.052(h). Tex. Loc. Govt Code Ann. 143.052(h).
Governments > Local Governments > Employees & Officials

HN32 See Tex. Loc. Govt Code Ann. 143.052(h).

Administrative Law > Agency Adjudication > Review of Initial Decisions Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Waiver & Preservation of Defenses Governments > Local Governments > Employees & Officials

HN28 In any Civil Service hearing hereunder, the department head is hereby restricted to his original written statement and charges which shall not be amended. Section 16 of the Firemans and Policemans Civil Service Act. The court has reasoned that a second set of charges were equivalent to an amendment to the original written statement, which was prohibited under the Texas Local Government Code. The case laid out a strict rule against amended letters of disciplinary action, and recognized the strict time constraints preventing the use of replacement letters.
Governments > Local Governments > Employees & Officials

HN29 Former 16 of the Civil Service Act is now codified in substantially similar form at Tex. Loc. Govt Code Ann. 143.053(c). The 120 -hour rule is now codified at 143.052(c). Tex. Loc. Govt Code Ann. 143.052(c)
Governments > Local Governments > Employees & Officials

HN33 City of Temple Firemens and Policemens Civil Service Commission v. Bender set out its own strict rules. The ten-day deadline to elect whether to appeal to the commission or to the hearing examiner is mandatory and must be strictly followed. Thus, Bichsel v. Carver and Bender both require strict adherence to the Texas Local Government Codes requirements. Bichsel restricts the city to its original letter in proceedings before the commission, while Bender requires that appellants (police officers and fire fighters) strictly adhere to the appeal invocation requirements. Nonetheless, an abatement is permissible under Bichsels and Benders frameworks. The court finds nothing under the Code to prevent the hearing examiner from offering an officer an abatement and a chance to change his election, having full knowledge of the appeal limitations. An amended letter of disciplinary action is not necessary, as long as the officer has actual knowledge of the appeal limitation when he makes his election. The purpose of the notice provision is satisfied by ensuring the officer has this knowledge in some way, prior to making the election. The purpose of the provision was to ensure that fire fighters and police officers are fully aware of a significant consequence.
Administrative Law > Agency Adjudication > Review

HN30 See Tex. Loc. Govt Code Ann.

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

of Initial Decisions Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Waiver & Preservation of Defenses Governments > Legislation > Interpretation Governments > Local Governments > Employees & Officials

HN36 See Tex. Loc. Govt Code Ann. 143.010(g).

Administrative Law > Agency Adjudication > Presiding Officers > Duties & Powers

HN34 During the abatement, should the officer choose to change his election and appeal to the commission, the hearing examiner may dismiss the case, so that the officer is permitted a reasonable time to appeal to the commission. The Texas Local Government Code requires an appeal within 10 days of the notice of suspension, a requirement strictly enforced in City of Temple Firemens and Policemens Civil Service Commission v. Bender. Tex. Loc. Govt Code Ann. 143.010(a). But in interpreting this deadline, the court must presume the Legislature intended a just and reasonable result and a result feasible of execution. Tex. Govt Code Ann. 311.021(3), (4). Therefore, the court holds that Bender applies when the officers failure to appeal within the 10-day deadline is attributable to the officer, but when the officers failure to appeal within the deadline is not attributable to the officer, the statute permits a reasonable extension of time. The court have recognized the Codes strict requirements in other contexts, stating that the full performance of all conditions established by the civil service laws is an essential prerequisite to the jurisdiction of the removing body over the subject matter of the removal of an officer.

HN37 See Tex. Loc. Govt Code Ann. 143.057(f).

Civil Procedure > ... > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Governments > Legislation > Statute of Limitations > Tolling

HN38 Tex. Loc. Govt Code Ann. 16.064 suspends the limitations period when a party mistakenly, and in good faith, files suit in one court, when jurisdiction was only proper in another, so that the plaintiff has an opportunity to re-file the case. Tex. Loc. Govt Code Ann. 16.064.
Civil Procedure > Appeals > Remands

HN39 Tex. R. App. P. 60.3 permits remand in the interest of justice. Counsel: For City of DeSoto, Texas, PETITIONER: 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, Arlington, TX; Ms. Rhonda Elaine Cates, Law OfAdministrative Law > Agency Adjudication > Review fice of Rhonda E. Cates, PLLC, Garland, TX; Mr. Randy Doubrava, Texas Municipal Police of Initial Decisions Governments > Local Governments > Employees & Of- Assn., Austin, TX.
ficials

Judges: JUSTICE GREEN delivered the opinHN35 The court sees nothing in the Texas Lo- ion of the Court. cal Government Code preventing a hearing examiner from informing the police officer or fire Opinion by: Paul W. Green fighter of the appellate limitations at the start of the hearing, so as to avoid this type of situaOpinion tion. The Code grants the hearing examiner discretion in conducting the hearing. [*391] HN1 A police officer who has been suspended from duty has a right to appeal that Administrative Law > ... > Statutory Rights > Imparaction to either a civil service commission or tial Decisionmaker > General Overview to an independent, third-party hearing exam-

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

iner. If the officer appeals to a hearing examiner, his ability to seek further review in a district court is severely limited. The suspended police officer in this case elected to appeal to a hearing examiner, but the City failed to inform him of the appeal limitation, as it was required to do by statute. The court of appeals concluded that the notification requirement is jurisdictional, and that its omission deprives a hearing examiner of authority to hear an appeal. 232 S.W.3d 379, 383-84. However, we hold that the pre-appeal notice provision is not jurisdictional. Accordingly, we reverse the court of appeals judgment.

White refused. The examiner then proceeded with the hearing, [**3] finding that jurisdiction was proper, as the City had substantially complied with the notice requirements under the Code. After the [*392] hearing, the examiner upheld Whites suspension.

White filed suit in district court, arguing that the examiner was without jurisdiction to hear his appeal. See id. HN2 143.057(j) (permitting judicial review of hearing examiner decision on grounds that the examiner was without jurisdiction). The trial court agreed, granting summary judgment in favor of White and ordering the City to reinstate White, correct his employment records, and pay his attorneys fees. The I court of appeals affirmed, holding that the noJustin White, a member of the DeSoto Police tice requirements under the Code were jurisdicDepartment, was suspended following two inter- tional, and that substantial compliance with nal investigations which the Department althose requirements did not suffice. 232 S.W.3d leged revealed improper conduct. The police at 383-84. The court of appeals also held chief delivered a letter of indefinite suspension that White could recover attorneys fees under to White, alleging that he abused [**2] sick the Code. Id. at 384. time policy, lied to an investigator, and interfered with a prosecution, all of which violated The City petitioned the Court, arguing: (1) the notice provision is not jurisdictional; (2) numerous department policies. The letter met almost all of the applicable requirements re- even if it is jurisdictional, substantial compliance satisfies the notice requirements under the quired by statute. See generallyTEX. LOC. Code; and (3) if White is entitled to relief, GOVT CODE 143.001-.363. It was issued timely, and it notified White that an appeal had the trial courts grant of attorneys fees exceeded the remedies available [**4] under the to be filed with either the Civil Service Commission or an independent third-party hearing Code. We agree with the City that HN3 notice of the appeal limitation as required by secexaminer within ten days of receipt. See id. 143.052(c), (d); .057(a). However, the letter tion 143.057(a) is not jurisdictional. Therefore, we need not reach the Citys other two did not notify White that an appeal to a hearing examiner would limit his ability to seek fur- issues. ther review with a district court, as required II by the Code. See id. 143.057(a), (j). White elected to appeal the suspension to a hearing examiner, where he was represented by counsel. As soon as the hearing began, White complained that the examiner was without jurisdiction to hear his appeal because the Citys letter failed to notify him of the appeal limitation, as required by the Code. In an attempt to rectify the omission, the examiner offered White an abatement, a continuance, and the opportunity to change his election, all of which
1

HN4 Chapter 143 of the Local Government Code, known as the Fire Fighter and Police Officer Civil Service Act, outlines the disciplinary process by which a municipality may suspend an officer and how that officer may appeal the suspension. TEX. LOC. GOVT CODE 143.051-.057. 1 A police department may suspend an officer for a violation of civil service rules. Id. 143.052(b). The officer may then appeal the suspension to either the

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

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Here, it is undisputed that the letter of disciplinary action failed to inform White that if he elected to appeal to a hearing examiner, his HN7 The Code specifies how the officer makes this [**6] appellate election. Within rights of review by a district court were waived, 120 hours of the suspension, the department except under limited circumstances. See id. head shall . . . file a written statement with the 143.057(a), (c), (j). The question is whether that commission giving the reasons for the suspen- omission deprived the hearing examiner of jusion, and also immediately deliver a copy risdiction to hear the appeal. of the statement to the suspended officer. Id. 143.052(c). The statement, also referred to as III 3 a letter of [*393] disciplinary action, must A point out each civil service rule alleged to have been violated . . . and must describe the alHN10 The failure of a jurisdictional requireleged acts of the person that the department ment deprives the court of the power to act head contends are in violation of the civil ser(other than to determine that it has no jurisdicvice rules. Id. 143.052(e). It must inform the suspended officer that if he chooses to appeal, tion), and ever to have acted, as a matter of law. he must file a written appeal within ten days 4 of Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004).

Fire Fighters and Police Officers Civil Service Commission, or an independent thirdparty hearing examiner. Id. 143.010, .053, .057(b). If the officer appeals to the Commission, the officer may seek review of the Commissions decision with a district court, which conducts a de novo review. Id. 143.015(b). However, if the officer appeals to a hearing examiner, the officer waives subsequent review by a district court, id. 143.057(c), except on the grounds that the [hearing examiner] 2 was without jurisdiction or exceeded its jurisdiction or that the order was procured [**5] by fraud, collusion, or other unlawful means. Id. 143.057(j).

receiving the letter, id. 143.052(d), and that he may elect to appeal to an independent third party hearing examiner instead of to the commission. Id. 143.057(a). Of importance to this case, the letter must also inform the officer that if [he] elects to appeal to a hearing examiner, [he] waives all rights to appeal to a district court, id. 143.057(a), except on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, [**7] or other unlawful means. Id. 143.057(j).

of 1.5 million or more. See, e.g., TEX. LOC. GOVT CODE 143.201-.209; 143.101-.135 (both subchapters addressing municipalities with population of 1.5 million or more). While there are some differences between the two schemes, the appellate process provisions are similar. Compare id. 143.053, .057, with id. 143.1015, .1016. Thus, our holding with regard to the nonjurisdictional nature of the notice provision applies with equal force under each scheme. See City of Houston v. Clark, 197 S.W.3d 314, 317 n.4 (Tex. 2006) (noting that, even though the case implicated a municipality a with a population of more than 1.5 million, the decision also applied to those municipalities with less than 1.5 million people).
2

HN6 This provision uses the term arbitration panel, rather than hearing examiner. TEX. LOC. GOVT CODE 143.057(c). However, we have noted that arbitration panel is synonymous with hearing examiner in this context. Clark, 197 S.W.3d at 318 n.5.
3

HN8 The Code refers to a written statement and a letter of disciplinary action. Compare, e.g., TEX. LOC. GOVT CODE 143.057(a), with id. 143.052(d). These terms appear to refer to the same document. For purposes of this opinion, we will not make a distinction between the two and will refer to the document provided to White as a letter of disciplinary action. See id. 143.057(a).
4

HN9 An officer working for a municipality with a population of 1.5 million or more has fifteen days to file an appeal. TEX. LOC. GOVT CODE 143.1015(a).

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

White argues that in an administrative context, the possibility of a delayed attack on a judgment is not present, in part because a later challenge to subject-matter jurisdiction is limited to the appeal process outlined in the Code. See[*394] As an initial matter, White argues that TEX. LOC. GOVT CODE 143.057(j) (perDubais reasoning does not apply here bemitting appeal to district [**11] court from hearcause Dubai dealt with a court of general juris- ing examiner only on the grounds that the diction, whereas a hearing examiner is a tribu[hearing examiner] was without jurisdiction or nal of very limited jurisdiction as prescribed by exceeded its jurisdiction or that the order statute. Dubai was a wrongful death action in was procured by fraud, collusion, or other unwhich the deceased was a foreign citizen. 12 lawful means). White cites no authority for this S.W.3d at 73. The plaintiff filed suit under a proposition, and HN12 we are not convinced statute, which permitted the claim as long as the that a delayed attack on an administrative judgdeceaseds country had equal treaty rights ment is an illusory concern. See, e.g., REwith the United States. Id. at 74. We held that STATEMENT (SECOND) OF JUDGMENTS the plaintiff did not have to establish equal 12 cmt. e., at 123 (1982) (There remain courts treaty rights to invoke the jurisdiction of the and administrative tribunals staffed by judges trial court. Id. at 73. In reaching this conclu- untrained in law or whose jurisdiction is so narsion, we rejected an earlier distinction we row as to be nearly ministerial. The opportuhad made when reviewing jurisdictional quesnity to challenge subject matter jurisdiction in tions, where we differentiated between specially such a forum may therefore be inadequate. When
5

[**8] 5 If the requirement is not jurisdictional, however, the tribunal may hear the case, although other consequences may flow from a partys failure to comply with the requirement. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75-77 (Tex. 2000); see also Loutzenhiser, 140 S.W.3d at 359 (The failure of a non-jurisdictional requirement mandated by statute may result in the loss of a claim, but that failure must be timely asserted and compliance can be waived.). We recognized in Dubai that deeming a provision jurisdictional opens the way to making judgments vulnerable to delayed attack for a variety of irregularities that perhaps better ought to be sealed in a judgment. Dubai, 12 S.W.3d at 76 (citing RESTATEMENT (SECOND) OF JUDGMENTS 12 cmt. b, at 118 (1982)). [T]he modern direction of policy is to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction. Id. (citing RESTATEMENT (SECOND) OF JUDGMENTS 11 cmt. e, at 113 (1982)). Because of these consequences, we have been reluctant to conclude that a provision is jurisdictional, absent clear legislative intent to that effect. Id. at 7576; see also Igal v. Brightstar Info. Tech Group, Inc., 250 S.W.3d 78, 83 (Tex. 2008).

-created statutory claims and common-law claims. Id. at 76 (overruling Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926), [**10] to the extent that it characterize the plaintiffs failure to establish the statutory prerequisite as jurisdictional). Instead, HN11 we adopted an approach to jurisdictional questions designed to strengthen finality and reduce the possibility of delayed attacks on judgments, regardless of whether the claim was anchored in common law or was a specially-created statutory action. Id. at 75-76. Thus, White misses our focus, post-Dubai. We recognize that a hearing examiner is a tribunal of very limited jurisdiction, and that it exercises special functions as dictated by statute. SeeTEX. LOC. GOVT CODE 143.057. But even though the examiner hears a limited type of case, consistent with Dubai, our focus is to avoid a result that leaves the decisions and judgments of the hearing examiner in limbo and subject to future attack, unless that was the Legislatures clear intent. See Igal, 250 S.W.3d at 84.

We [**9] recently noted in that [a]lthough the Legislature subsequently provided that the notice requirement at issue in Loutzenhiser was jurisdictional, the Courts reasoning [with regard to statutory analysis of alleged jurisdictional provisions] remains valid. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 84 (Tex. 2008).

288 S.W.3d 389, *394; 2009 Tex. LEXIS 395, **11

this is so, a challenge to subject matter jurisdiction may properly be permitted through subsequent attack on the judgment.); see also Igal, 250 S.W.3d at 83 (applying Dubais reasoning in an administrative context).

Consistent with Dubai, then, we begin with the presumption that the Legislature did not intend to make the notice under section 143.057(a) jurisdictional; a presumption overcome only TEX. LOC. GOVT CODE 143.057(a) by clear legislative intent to the contrary. (emphasis added). Subsection (j) states the limited exception: HN16 [a] district B court may hear an appeal of a hearing exHN13 To determine whether a statutory require- aminers award only on the grounds that the [hearing examiner] was without jurisment is jurisdictional, we [**12] apply statutory interpretation principles. Igal, 250 S.W.3d at diction or exceeded its jurisdiction or that the order was procured by fraud, col84. As with any statutory provision, our goal is to ascertain legislative intent by examining the lusion, or other unlawful means. Id. statutes plain language. F.F.P. Operating Part- 143.057(j). ners, L.P. v. Duenez, 237 S.W.3d 680, 684 HN17 Section 143.057(a) clearly requires that (Tex. 2007). We review this statutory interpretathe letter notify the officer of the appeal limitation question de novo. Id. at 683. [*395] Since the Legislature is bound to know the con- tion. It provides that the letter must inform the officer of the limitation. Id. 143.057(a). sequences of making a requirement jurisdictional, one must ask, in trying to determine leg- The Code Construction Act explains that must creates or recognizes a condition precedent, islative intent, whether the Legislature TEX. GOVT CODE 311.016(3), and we have intended those consequences. Loutzenhiser, recognized that must generally means man140 S.W.3d at 359. datory. Helena Chem., 47 S.W.3d at 493. The rest of [**14] the Code and its apparent obHN14 We consider a number of factors in deterjective also indicate this provision is mandamining whether the Legislature intended that a provision be jurisdictional. See generally Hel- tory. See id. at 494 (To determine whether the Legislature intended a provision to be mandaena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001). But, as with any statute, we be- tory or directory, we consider the plain meaning of the words used, as well as the entire gin with the text. Meritor Automotive, Inc. v. act, its nature and object, and the consequences Ruan Leasing Co., 44 S.W.3d 86, 89 (Tex. 2001); Helena Chem., 47 S.W.3d at 493. Sec- that would follow from each construction.). The Code establishes two alternative means for tion 143.057(a) provides: officers to appeal: to the Commission or to the hearing examiner. TEX. LOC. GOVT CODE HN15 In addition to the other notice 143.053, .057. These two avenues of aprequirements prescribed by this peal, however, diverge on the right to further juchapter, the written notice for a prodicial review. If the officer does not know of motional bypass or the letter of discithese limitations, then the officer is unable to plinary action, as applicable, issued properly assess which appeal route to take. This to a fire fighter or police officer must notice protects the officers appellate rights. state that in an appeal of an indefiThus, we hold that the notice provision under nite [**13] suspension, a suspensection 143.057(a) is mandatory. sion, a promotional bypass, or a recommended demotion, the appealing But HN18 just because a statutory requirefire fighter or police officer may elect

to appeal to an independent third party hearing examiner instead of to the commission. The letter must also state that if the fire fighter or police officer elects to appeal to a hearing examiner, the person waives all rights to appeal to a district court except as provided by Subsection (j).

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

ment is mandatory does not mean that compliance with it is jurisdictional. Albertsons, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999). The Code does not contain any explicit language indicating that this notice requirement is jurisdictional. White points to another provision, section 311.034 of the Government Code, [**15] and argues that it provides the language necessary to deem this notice requirement jurisdictional. Section 311.034, part of the Code Construction Act, provides: Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity. TEX. GOVT CODE 311.034. But this provision does not control in this [*396] case. First, HN19 this provision does not apply to the construction of all statutes. Section 311.034 specifically addresses waivers of sovereign immunity, an issue not implicated here. See id. (In order to preserve the [L]egislatures interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language. (emphasis added)). Also, the notice requirement here is not a statutory prerequisite to suit. As noted below, the statute requires notice, but it does not specifically mandate it as a prerequisite to suit or appeal. Thus, the text of the statute does not indicate that the Legislature intended the provision to be jurisdictional.

ary action provided to the officer must point out each civil service rule alleged to have been violated . . . and must describe the alleged acts. Id. 143.052(e). Subsection (f) provides the remedy: If the department head does not specifically point out in the written statement the act or acts of the . . . police officer that allegedly violated the civil service rules, the commission shall promptly reinstate the person. Id. 143.052(f). By arguing that the Citys failure to provide the required notice is jurisdictional, White seeks the same remedy provided for in section 143.052(f)--dismissal. In fact, the trial court dictated this very result in its order granting summary judgment in favor of White. However, [w]hen the [**17] Legislature includes a right or remedy in one part of a code but omits it in another, that may be precisely what the Legislature intended, and we must honor that difference. PPG Indus., Inc. v. JMB/ Houston Ctrs. Partners Ltd. Pship, 146 S.W.3d 79, 84 (Tex. 2004). So, we must assume the Legislature did not intend that a dismissal be the consequence for noncompliance.

Finally, HN21 we look to the consequences that result from each possible interpretation. Helena Chem., 47 S.W.3d at 495. One possible interpretation is that section 143.057(a)s notice requirement is jurisdictional. The consequence of this interpretation is evident in this very case. The trial courts order reinstated White, permitting him to rejoin the police force without an adjudication of the very seriHN20 We have also looked for the presence ous allegations against him. 6 Reinstating an ofor absence [**16] of specific consequences for ficer in this situation is troubling, given the vinoncompliance in determining whether a pro- tal role of police officers and fire fighters in vision is jurisdictional. Helena Chem., 47 our society, and the need for continued public trust in the exercise of their duties. See Code S.W.3d at 495. Here, the statute does not provide a specific consequence for noncompli- Construction Act, TEX. GOVT CODE 311.021(5) (In enacting a statute, it is preance. See generallyTEX. LOC. GOVT CODE 143.001-.363. As a comparison, section sumed that . . . public interest is favored over 143.052(e) provides that the letter of disciplin- any private interest). This cannot be the result

The City alleged White abused the Departments sick time policy during a holiday weekend and subsequently lied to a supervisor about his actions. The City states that, due to an internal investigation which found White was untruthful, the District Attorneys office was forced to alert defense counsel in all pending cases in which White was a potential witness, which the City states lead to the dismissal of twenty-one pending criminal cases. The City also alleges that White asked an Assistant District Attorney to reduce or drop charges against an individual he had arrested for driving while under the influence of alcohol and that after failing to appear at trial, White informed the prosecutor that he had become friends with the suspect and despite having effectuated the arrest, he could no longer testify that the suspect was intoxicated.

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

TEX. LOC. GOVT CODE 143.010(a). We held that one of the statements contained within section 143.010(b) is required to be included in a notice of appeal in order to invoke the jurisdiction of a civil service commission, and because his C first notice did not, Bender failed to invoke the Commissions jurisdiction. White urges that our decision in City of Bender, 787 S.W.2d at 952. We then held Temple Firemens and Policemens Civil Serthat Benders amended notice of appeal vice Commission v. Bender precludes a finding also failed to invoke the jurisdiction of the that the notice provision is [**19] nonCommission because the ten-day deadjurisdictional. 787 S.W.2d 951 (Tex. 1990) (per line under section 143.010(a) is mandacuriam). Bender recognized the need for tory and must be strictly followed. Id. at strict adherence to the Code when an officer in- 953. vokes the Civil Service Commission appellate process. See generally id. at 951. In Bender, the White argues Bender dictates that a failure to question was whether a civil service commis- meet a particular statutory requirement must be jurisdictional. But Bender focused on whether sions jurisdiction has been invoked under the officer had timely and properly invoked the section 143.010(b) of the Texas Local GovernCommissions jurisdiction--ensuring the case ment Code if a fire fighters or police offiwas properly before the Commission. Id. at 951 cers notice of appeal fails to allege the basis of the appeal. Id. Section 143.010(b) provides: -53; see also Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex. 1998) (per curiam) (citing Morrow v. Corbin, 122 Tex. 553, 62 The appeal must include the basis for S.W.2d 641, 644 (Tex. 1933) [**21] and notthe appeal and a request for a coming that HN22 the hallmark of a jurisdictional mission hearing. The appeal must also provision is that it seeks to assure the approcontain a statement denying the priate body adjudicates the dispute). Under the truth of the charge as made, a stateCivil Service Code, only a police officer or ment taking exception to the legal suffire fighter may invoke the appeals process. Seeficiency of the charge, a statement alTEX. LOC. GOVT CODE 143.010(a); leging that the recommended .057(a); see also City of Houston v. Clark, 197 action does not fit the offense or alS.W.3d 314, 318 (Tex. 2006). Thus, when it leged offense, or a combination of comes to invoking the jurisdiction of the Comthese statements. mission or hearing examiner, the focus must always be on the officers actions. The Citys noTEX. LOC. GOVT CODE 143.010(b). tice letter does not invoke the appeals Officer Bender was suspended indefinitely process. It is similar to a pre-suit notice requireand attempted to appeal to the Civil Serment, which is not jurisdictional. See, e.g., vice Commission. Bender, 787 S.W.2d at Hines v. Hash, 843 S.W.2d 464, 469-70 (Tex. 951-52. His attorney mailed a letter to 1992) (holding that defendant had waived prethe Commission, advising of Benders insuit notice requirement under the Deceptive tention to appeal, but the letter failed to Trade Practices--Consumer Protection Act by list the specific grounds for appeal as refailing to request [*398] an abatement). Thus, quired [**20] by section 143.010(b). Id. at 952. After the city attorney notified him of the omission, Bender submitted an amended notice, which the Commission refused as untimely under the ten-day deadline imposed by the Code. Id.; see also-

[**18] the [*397] Legislature intended, especially where an interpretation which concludes that the provision is not jurisdictional would still protect the officers appellate rights, as discussed below.

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

Bender is distinguishable. D

For these reasons, we hold that the Citys failure to provide the mandatory notice under section 143.057(a) did not deprive the hearing examiner of jurisdiction to hear Whites appeal. IV Having determined that the notice provision is not jurisdictional, we must determine the proper remedy, if any, for the Citys failure to comply. HN24 When the statute is silent as to the consequences for noncompliance, we look to the statutes 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 is to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants. TEX. LOC. GOVT CODE 143.001(a). As discussed above, HN26 dismissal of the case and the charges against the officer cannot be the remedy. The statutes purpose of seeking efficient and capable personnel is not served by dismissing the case and permitting potentially unfit officers to return to the force without a determination of the substance of the complaint against them. At the same time, the possibility of imposing no consequences is troubling, given that the required notice is intended to inform the officer of important appellate rights. The provision is certainly an important one: The Legislatures apparent purpose in [en7

acting the provision] was to ensure that fire fighters and police officers are fully aware of a significant consequence that will result if they elect to have an independent hearing examiner, rather than the Commission, hear their appeal. Clark, 197 S.W.3d at 319-20. Thus, we [**24] believe the statute requires some remedy. HN27 An abatement is generally appropriate to cure pre-suit notice deficiencies. Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 184 (Tex. 2004) (holding that abatement, for a reasonable period of time, rather than dismissal, is appropriate remedy until parties meet the pre-suit requirement that they are unable to agree on the amount of damages in a condemnation proceeding); Hines, 843 S.W.2d at 468 (holding that abatement is proper remedy for failure to give pre-suit notice in Deceptive Trade Practices--Consumer Protection Act case); Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983) (holding that abatement is appropriate for failure to give notice in health care liability claim). We recognize the statute here is unique. Normally, the party that eventually files suit is required to provide pre-suit notice. See, e.g., Hines, 843 S.W.2d at 465. Under the Civil Service Act, however, [*399] the City provides notice, and then the officer appeals. We nonetheless conclude that an abatement is the appropriate remedy because it cures the notice omission: it allows the City to notify White of his appellate rights without dismissing [**25] a case against a potentially unfit officer, and it allows White an opportunity to make an appellate election with full knowledge of the consequences of choosing each path.

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 officers failure to file an appeal within ten days of receiving a copy of the written statement [**22] of charges deprived the Commission of jurisdiction under section 143.052(d)); City of Plano Firefighters & Police Officers Civil Serv. Commn 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 the Civil Service Code, the Commission lacked jurisdiction to hear the appeal). HN23 Each of these cases, including Bender, were issued prior to Dubai, where we extended the presumption against jurisdictional findings from common-law claims to statutory actions. See Dubai, 12 S.W.3d at 75. We note this, not to call into question Benders continuing applicability, but rather, to emphasize the proper focus in this jurisdictional inquiry.

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

White argues the statute does not permit an abatement because a ten-day election deadline is imposed on White, a deadline long since passed. SeeTEX. LOC. GOVT CODE 143.052(d) ([T]he [fire fighter or police officer] must file a written appeal with the commission within 10 days after the date the person receives the copy of the [disciplinary] statement.). He contends that the abatement remedy, or a dismissal allowing him to make a new election after the City provides the appropriate notice, is precluded by our decisions in Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284 (Tex. 1959), and Bender, 787 S.W.2d 951. We disagree, and hold that an abatement is appropriate under the Code, as well as under Bichsels and Benders analyses. In Bichsel, we analyzed a Citys ability to amend a written statement filed with the Civil Service Commission. 321 S.W.2d at 285. The chief of police suspended Officer Carver, alleging that he violated police department rules. Id. Carver appealed to the Commission, arguing that the charges were legally [**26] insufficient because the Code required an allegation that the officer violated the civil service rules. Id. The City agreed and withdrew the charges, reinstated Carver, and then the Chief re -suspended him the following day. Id. The City then filed a second set of charges, this time properly alleging a violation of the civil service rules. Id. Before the Commission could hold a hearing, Carver sought injunctive and mandamus relief in district court, which was granted. Id. We held that the City could not amend the original charges, as the Code prevented it: HN28 In any Civil Service hearing hereunder, the department head [the Chief] is hereby restricted to his original written statement and
8

charges which shall not be amended. Id. at 286 (citing section 16 of the Firemans and Policemans Civil Service Act) (emphasis in original). 8 We reasoned that a second set of charges were equivalent to an amendment to the original written statement, which was prohibited under the Code. See id. at 286-87. We also stated that, even if the second set of charges were considered new, original charges, these would be barred by the 120-hour deadline for filing charges following the suspension. Id. at 287. [**27] 9 We summarized the barriers to any new or amended charges: If the new charges be regarded as corrections to the original charges arising out of the same incident, they were invalid under that part of the statute prohibiting amendment of the charges. If they were new original charges arising out of the same incident, they came long after 120 hours from Carvers suspension on September 19. They were thus filed too late. [*400] Id. The dissent pointed out a third barrier: new, original charges would likely be precluded by the rule that the department may not suspend an officer for acts 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 against amended letters of disciplinary action, and recognized the strict time constraints preventing the use of replacement letters. 321 S.W.2d at 287. HN33 Bender set out its own strict rules. As discussed above, we held in Bender that the ten-

Bichsel analyzed HN29 former section 16 of the Civil Service Act, which is now codified in substantially similar form at section 143.053(c) of the Local Government Code. 321 S.W.2d at 286; see alsoTEX. LOC. GOVT 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. GOVT CODE 143.052(c)HN30 (If the department head suspends a fire fighter or police officer, the department head shall, within 120 hours after the hour of suspension, file a written statement with the commission giving the reasons for the suspension. The department head shall immediately deliver a copy of the statement in person to the suspended fire fighter or police officer.)
10

HN31 The 180-day rule is codified at section 143.052(h) of the Local Government Code. TEX. LOC. GOVT CODE 143.052(h)HN32 (In the original written statement and charges and in any hearing conducted under this chapter, the department head may not complain of an act that occurred earlier than the 180th day preceding the date the department head suspends the fire fighter or police officer.).

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

day deadline to elect whether to appeal to the Commission or to the hearing examiner is mandatory and must be strictly followed. 787 S.W.2d at 953. Thus, Bichsel and Bender both require strict adherence to the Codes requirements. 11Bichsel restricts the City to its original letter in proceedings before the Commission, while Bender [**29] requires that appellants (police officers and fire fighters) strictly adhere to the appeal invocation requirements. Nonetheless, an abatement is permissible under Bichsels and Benders frameworks. We find nothing under the Code to prevent the hearing examiner from doing what he did in this case-offering White an abatement and a chance to change his election, having full knowledge of the appeal limitations. An amended letter of disciplinary action is not necessary, as long as the officer has actual knowledge of the appeal limitation when he makes his election. The purpose of the notice provision is satisfied by ensuring the officer has this knowledge in some way, prior to making the election. See Clark, 197 S.W.3d at 319-20 (finding that the purpose of the provision was to ensure that fire fighters and police officers are fully aware of a significant consequence). HN34 During the abatement, should the officer choose to change his election and appeal to the Commission, the hearing examiner may dismiss the case, so that the officer is permitted a reasonable time to appeal to the Commission. The Code requires an appeal within ten days of the notice of suspension, a requirement strictly [**30] enforced in Bender. SeeTEX. LOC. GOVT CODE 143.010(a); Bender, 787 S.W.2d at 953. But in interpreting this deadline, we must presume the Legislature intended

a just and reasonable result and a result feasible of execution. TEX. GOVT CODE 311.021(3), (4). Therefore, we hold that Bender applies when the officers failure to appeal within the ten-day deadline is attributable to the officer, but when, as here, the officers failure to appeal within the deadline is not attributable to the officer, the statute permits a reasonable extension of time. 12 V Officer White was given an opportunity to change his election by the hearing [*401] examiner before the hearing commenced. He declined. Generally, because we hold that the notice provision is not jurisdictional, we would also hold White waived any complaint of the omission, given that White had full knowledge of the appeal limitation under section 143.057(j). See [**32] Loutzenhiser, 140 S.W.3d at 358-59. However, we recognize that, in making his decision to decline the opportunity to change his election, White could have been reasonably relying on Benders strict enforcement of the ten-day election deadline. Under these circumstances, White should be given an opportunity to make a new election. Although not directly applicable, section 16.064 of the Texas Civil Practice and Remedies Code provides us guidance. HN38 Section 16.064 suspends the limitations period when a party mistakenly, and in good faith, files suit in one court, when jurisdiction was only proper in another, so that the plaintiff has an opportunity to re-file the case. TEX. CIV. PRAC. & REM. CODE 16.064. We conclude that the same policy reasons behind section 16.064 apply here to permit White an opportunity to make a

11 We have recognized the Codes strict requirements in other contexts, stating that [t]he full performance of all conditions established by the civil service laws is an essential prerequisite to the jurisdiction of the removing body over the subject matter of 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 Sherman attempted to suspend Arnold before the newly-appointed Civil Service Commission had completed all of the steps necessary 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 the midst of the hearing, or after the hearing examiners judgment was issued. White argued from the start that the hearing examiner was without jurisdiction, at which time the examiner offered an abatement. HN35 We see nothing in the Code preventing a hearing examiner from informing the police officer or fire fighter of the appellate limitations at the start of the hearing, so as to avoid this type of situation. We also note that the Code grants the hearing examiner discretion in conducting the hearing. SeeTEX. LOC. GOVT CODE 143.010(g)HN36 (the commission shall conduct the hearing fairly and impartially as prescribed by this chapter and shall render a just and fair decision); 143.057(f)HN37 (the hearing examiner has the same duties and powers as the commission).

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

new election. For these reasons, we remand the case to the district court with instructions to remand to the hearing examiner, so that White has an opportunity to make an appellate election with full knowledge of his appellate rights and with knowledge of our guidance in this opinion. VI We reverse the court of appeals judgment and remand 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

JUSTIN P. NICHOLS
ATTORNEY
AT

LAW .

106 S. Saint Marys Street 255 One Alamo Center San Antonio, Texas 78205 (210) 354-2300 phone (800) 761-5782 facsimile Justin@TheNicholsLawFirm.com

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 yesterdays hearing, I am submitting DEFENDANTS SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS 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 Plaintiffs 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 Justin@TheNicholsLawFirm.com to be informed of your decision. Thank you for your consideration of this matter, and please call with any questions. Sincerely,
THE NICHOLS LAW FIRM, P.L.L.C.

JUSTIN P. NICHOLS Enclosures cc: VIA FAX (972) 788-2667 w/ enclosures (Appendix emailed to rlurich@fflawoffice.com) Ryan Lurich, Esq. Attorney for Plaintiff

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1. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486 Client/matter: Adelman

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Helena Chem. Co. v. Wilkins

Supreme Court of Texas 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 for arbitration, but the Texas Plant and Seed Board declined to arbitrate the case. A jury entered judgment for respondents on all but the fraud claim. The Court of Appeals for the Fourth District of Texas affirmed the judgment. Petitioners sought review. Overview Respondents suffered losses from poor harvests after they planted petitioners seeds. Respondents had relied upon petitioners representations that the seeds were suited for respondents climate and soil in planting the seeds. The trial court abated the proceeding for arbitration under the Texas Seed Arbitration Act, Tex. Agric. Code Ann. 64.001- 64.007. Respondents waited 15 months before filing for arbitration. The arbitration board declined to hear the claim because of the delay. After the abatement was lifted the jury entered judgment for respondents. The supreme court found respondents delay in submitting their claims to arbitration did not jurisdictionally bar their suit, (2) the trial court did not abuse its discretion in admitting respondents experts testimony, and (3) there was sufficient evidence to support the jurys liability, causation, and damages findings.

HELENA CHEMICAL COMPANY AND HYPERFORMER SEED COMPANY, PETITIONERS v. KENNETH WILKINS AND TOM WILKINS INDIVIDUALLY, AND D/B/A CHAPOTAL FARMS AND PORCIONES 99 PROPERTIES, GEEN WILKINS AND MARK WILKINS, INDIVIDUALLY AND D/B/A TABASCO, AND WILKINS FAMILY LIMITED PARTNERSHIP, RESPONDENTS Prior History: [**1] ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS. Disposition: Court of appeals judgment affirmed.
Core Terms

arbitration, inspection, plants, crop, seed, trial court, mandatory, warranty, farmer, court of appeals, misrepresentation, recommendations, label, reliability, farming, grain, reasonable certainty, unconscionability, arbitration board, legal action, noncompliance, puffing, lost profits, tolerant, dryland, seller, lost-profits, prerequisite, harvesting, unreliable Outcome Judgment was affirmed as the suit was not jurisdictionally barred, the trial court properly perCase Summary mitted respondents expert witness to testify, and Procedural Posture the evidence was sufficient to support the juRespondent farmers sued petitioner seed sellers rys verdict. in a Texas trial court for Deceptive Trade Practices--Consumer Protection Act violations, breach of warranties, and fraud. Petitioners filed LexisNexis Headnotes

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

HN7 A court must always consider a statute as a whole rather than its isolated provisions. A court should not give one provision a meaning HN1 The Texas Legislature enacted the Texas out of harmony or inconsistent with other proSeed Arbitration Act, Tex. Agric. Code Ann. visions, although it might be susceptible to such 64.001- 64.007, in 1989 to provide for an unbiased third party investigation by the State Seed a construction standing alone. A court must presume that the Texas Legislature intends an enand Plant Board of the Texas Department of Agriculture of complaints concerning seed per- tire statute to be effective and that a just and reasonable result is intended. Tex. Govt Code formance. Ann. 311.021(2),(3).
Civil Procedure > Pretrial Matters > Alternative Dispute Resolution > Mandatory ADR Civil Procedure > Pretrial Matters > Alternative Dispute Resolution > Mandatory ADR Governments > Agriculture & Food > Distribution, Processing & Storage Governments > Legislation > Interpretation

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

Civil Procedure > ... > Alternative Dispute Resolution > Judicial Review > General Overview Civil Procedure > Pretrial Matters > Alternative Dispute Resolution > Judicial Review

HN3 See Tex. Agric. Code Ann. 64.004.

Civil Procedure > Pretrial Matters > Alternative Dispute Resolution > Mandatory ADR

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

Civil Procedure > Pretrial Matters > Alternative Dispute Resolution > Mandatory ADR

HN8 When used in a statute, the term must creates or recognizes a condition precedent. Tex. Govt Code Ann. 311.016(3). While Texas courts have not interpreted must as often as shall, both terms are generally recognized as mandatory, creating a duty or obligation. Tex. Govt Code Ann. 311.016(2) and (3). The word must is given a mandatory meaning when followed by a noncompliance penalty. However, courts have held language that appears to impose a mandatory duty to be only directory when this interpretation is most consistent with the Texas Legislatures intent.
Governments > Legislation > Interpretation

HN5 See Tex. Agric. Code Ann. 64.006.

Governments > Legislation > General Overview Governments > Legislation > Interpretation

HN9 To determine whether the Texas Legislature intended a provision to be mandatory or directory, a court will 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.
Governments > Legislation > Interpretation

HN6 A court must construe statutes as written and, if possible, ascertain legislative intent from the statutes language. Even when a statute is not ambiguous on its face, a court can consider other factors to determine the Texas Legislatures intent, including: the object sought to be obtained; the circumstances of the statutes enactment; the legislative history; the common law or former statutory provisions, including laws on the same or similar subjects; the consequences of a particular construction; administrative construction of the statute; and the title, preamble, and emergency provision. Tex. Govt Code Ann. 311.023.
Governments > Legislation > Interpretation

HN10 Even if a statutory requirement is mandatory, this does not mean that compliance is necessarily jurisdictional.
Governments > Legislation > Interpretation

HN11 When a statute is silent about the consequences of noncompliance, a court will look to the statutes purpose to determine the proper consequences.
Civil Procedure > Pretrial Matters > Alternative Dispute Resolution > Mandatory ADR

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

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

Civil Procedure > Pretrial Matters > Alternative Dispute Resolution > Mandatory ADR

Civil Procedure > Pretrial Matters > Alternative Dispute Resolution > Mandatory ADR

HN18 The Texas Seed Arbitration Act, Tex. Agric. Code Ann. 64.001- 64.007, permits the HN13 Tex. Agric. Code Ann. 64.006(a) states State Seed and Plant Board of the Texas Departthat a purchasers complaint must be filed ment of Agriculture to independently investiwithin the time necessary to permit effective in- gate and assess a purchasers claims. Tex. Agspection under field conditions. The word ric. Code Ann. 64.006(d). must creates or recognizes a condition precCivil Procedure > ... > Alternative Dispute Resoluedent. Tex. Govt Code Ann. 311.016(3). The tion > Judicial Review > General Overview Texas Legislature has instructed courts to apCivil Procedure > Pretrial Matters > Alternative Disply this definition unless its context necessarily pute Resolution > Mandatory ADR requires a different construction. Tex. Govt Code 311.016. HN19 By the express terms of the Texas Seed Arbitration Act, Tex. Agric. Code Ann. Civil Procedure > ... > Alternative Dispute Resolu64.001- 64.007, the State Seed and Plant Board tion > Judicial Review > General Overview of the Texas Department of Agriculture can Civil Procedure > Pretrial Matters > Alternative Discarry out an investigation in a number of ways pute Resolution > Judicial Review that do not necessarily require it to conduct HN14 See Tex. Agric. Code Ann. 64.004. its own field inspection. For example, the Act authorizes the Board to delegate all or any part Civil Procedure > Pretrial Matters > Alternative Disof its investigation to its members. Tex. Agpute Resolution > Mandatory ADR ric. Code Ann. 64.006(g). And the Board may HN15 To determine whether a statutory timing grow representative samples, conduct hearings, and examine the parties. Tex. Agric. Code provision is mandatory, a court will first look Ann. 64.006(f). to whether the statute contains a noncompliance penalty. If a provision requires that an Civil Procedure > ... > Alternative Dispute Resoluact be performed within a certain time without tion > Judicial Review > General Overview any words restraining the acts performance Civil Procedure > Pretrial Matters > Alternative Dispute Resolution > Mandatory ADR after that time, the timing provision is usually directory. HN20 If a purchaser does not submit a claim in time for the State Seed and Plant Board of the Civil Procedure > Pretrial Matters > Alternative DisTexas Department of Agriculture or the seller pute Resolution > Mandatory ADR to conduct an effective field inspection, it does HN16 The Texas Seed Arbitration Act, Tex. Ag- so at its own peril. The Board may make findric. Code Ann. 64.001- 64.007, states that ings adverse to the purchaser on this basis. Tex. a purchasers complaint must be filed within the Agric. Code Ann. 64.004. If the purchaser time necessary to permit effective inspection then sues, the Boards findings and recommenof the plants under field conditions. Tex. Agric. dations are admissible, and the Texas Seed ArCode Ann. 64.006(a). bitration Act, Tex. Agric. Code Ann. 64.00164.007, expressly authorizes the court to both Governments > Legislation > Interpretation give such weight to the Boards findings of fact, HN17 When deciding whether the Texas Legis- conclusions of law, and recommendations as to damages and costs as the court determines adlature intended a particular provision to be jurisdictional, a court must consider the conse- visable and take into account any findings with respect to the failure of any party to coopquences that result from each possible erate in the arbitration proceedings, including construction. any 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.

Governments > Legislation > Interpretation

HN21 A court must presume that every word in a statute is included purposefully.
Civil Procedure > Pretrial Matters > Alternative Dispute Resolution > Mandatory ADR Governments > Agriculture & Food > Product Quality

derstand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of opinion or otherwise. Tex. R. Evid. 702. Otherwise admissible opinion testimony is not objectionable because it embraces an ultimate issue of fact. Tex. R. Evid. 704.
Evidence > ... > Testimony > Expert Witnesses > General Overview Evidence > Admissibility > Expert Witnesses

HN22 The Texas Seed Arbitration Act, Tex. Agric. Code Ann. 64.001- 64.007, provides that a complaint must be filed in time to permit effective inspection of the plants under field conditions, Tex. Agric. Code Ann, 64.006(a), thus permitting the parties to inspect under field conditions and provide their reports to the State Seed and Plant Board of the Texas Department of Agriculture. Tex. Agric. Code Ann. 64.006(h).
Governments > Legislation > Interpretation

HN26 A two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and be based on a reliable foundation. The trial court makes the initial determination about whether the expert and the proffered testimony meet these requirements.
Evidence > ... > Testimony > Expert Witnesses > General Overview

HN27 A trial court has broad discretion to determine the admissibility of expert testimony, HN23 When a Texas statute is modeled after an- and an appellate court will reverse only if there other jurisdictions, that jurisdictions interpre- is an abuse of that discretion. tation before the Texas Legislature enacts its statute may be given weight. However, when the Evidence > Admissibility > Scientific EviTexas Legislature looks to another jurisdicdence > Standards for Admissibility Evidence > ... > Testimony > Expert Wittions statute, but modifies rather than adopts nesses > General Overview some of its provisions, it does so purposeEvidence > Admissibility > Expert Witnesses > Daubert fully.
Civil Procedure > ... > Alternative Dispute Resolution > Judicial Review > General Overview Civil Procedure > Pretrial Matters > Alternative Dispute Resolution > Mandatory ADR Governments > Legislation > Interpretation Standard Evidence > ... > Testimony > Expert Witnesses > Qualifications

HN24 When a court is faced with two competing statutory interpretations, the court must choose the one most harmonious with an acts objectives and other provisions.
Evidence > ... > Testimony > Expert Witnesses > General Overview Evidence > Admissibility > Expert Witnesses Evidence > Admissibility > Expert Witnesses > Ultimate Issue

HN28 In deciding if an expert is qualified, trial courts must ensure that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion. To gauge reliability, Daubert and Tex. R. Evid. 702 demand that the district court evaluate the methods, analysis, and principles relied upon in reaching the opinion. The court should ensure that the opinion comports with applicable professional standards outside the courtroom and that it will have a reliable basis in the knowledge and experience of the discipline.
Evidence > ... > Testimony > Expert Wit-

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

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

nesses > General Overview Evidence > Admissibility > Expert Witnesses

HN29 There must be some basis for an expert opinion offered to show its reliability, and, ultimately, the trial court must determine how to Antitrust & Trade Law > Consumer Protecassess reliability. If an expert relies upon untion > Deceptive & Unfair Trade Practices > General reliable foundational data, any opinion drawn Overview Torts > Business Torts > Fraud & Misrepresentafrom that data is likewise unreliable. Further, an tion > General Overview experts testimony is unreliable even when the underlying data is sound if the experts methHN32 A party need not prove intent to make a odology is flawed. misrepresentation under the Texas Deceptive Trade Practices--Consumer Protection Act Antitrust & Trade Law > Consumer Protec17.46(b)(5) or 17.46(b)(7)--making the false reption > Deceptive & Unfair Trade Practices > General resentation is itself actionable. Overview
Torts > Business Torts > Fraud & Misrepresentation > General Overview Antitrust & Trade Law > ... > Trade Practices & Unfair Competition > State Regulation > Scope Torts > ... > Elements > Causation > General Overview Torts > ... > Elements > Causation > Causation in Fact

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

HN30 The Texas Deceptive Trade Practices-Consumer Protection Act prohibits false, misleading, or deceptive acts or practices in the conduct of any trade or commerce.
Contracts Law > Types of Commercial Transactions > Sales of Goods > General Overview Contracts Law > ... > Buyers Damages & Remedies > Limitation & Modification > Unconscionable Limitations Contracts Law > ... > Sellers Damages & Remedies > Limitation & Modification > Unconscionable Limitations Torts > Business Torts > Fraud & Misrepresentation > General Overview

HN33 To recover under the Texas Deceptive Trade Practices--Consumer Protection Act, a plaintiff must show that a defendants actions were the producing cause of actual damages. Tex. Bus. & Com. Code Ann. 17.50(a). This showing requires some evidence that the defendants act or omission was a cause in fact of the plaintiffs injury. Under this standard, it is not necessary to show that the harm was foreseeable.
Torts > Business Torts > Fraud & Misrepresentation > General Overview

HN31 Tex. Bus. & Com. Code Ann. 17.46(b) is a laundry list of specifically prohibited acts. Sections 17.46(b)(5) and 17.46(b)(7) prohibit false, misleading, or deceptive acts or practices including representing that goods and services have characteristics, ingredients, uses, or benefits which they do not have and representing that goods or services are of a particular standard, quality, or grade if they are of another. Section 17.46(b)(23) prohibits the failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed. Section 17.50 provides the remedy

HN34 Mere puffing statements are not actionable under 17.46(b)(5) or 17.46 (b)(7) of the Texas Deceptive Trade Practices--Consumer Protection Act.
Civil Procedure > ... > Standards of Review > Substantial Evidence > General Overview

HN35 In conducting a no-evidence review, an appellate court must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. If more than a scintilla of evidence exists, the evidence is legally sufficient to support the finding.

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

Torts > ... > Types of Damages > Compensatory Damages > General Overview

HN36 Recovery for lost profits does not require that the loss be susceptible to exact calculation. However, the injured party must do more than show that it suffered some lost profits. The loss amount must be shown by competent evidence with reasonable certainty. This is a fact-intensive determination. At a minimum, opinions or lost-profit estimates must be based on objective facts, figures, or data from which the lost-profits amount may be ascertained.
Governments > Agriculture & Food > Product Promotions Torts > Remedies > Damages > General Overview

Commercial Law (UCC) > Sales (Article 2) > Form, Formation & Readjustment > General Overview Computer & Internet Law > Civil Actions > Damages Torts > Remedies > Damages > General Overview

HN40 Past profits, coupled with other facts and circumstances, may establish a lost-profits amount with reasonable certainty. However, lack of a profit history does not, by itself, preclude a new business from recovering lost future profits. Rather, the focus is on whether damages can be shown with reasonable certainty. This can be accomplished with a profit history or some other objective data, such as future contracts, from which lost profits can be calculated with reasonable certainty.
Contracts Law > Types of Contracts > Lease Agreements > General Overview Governments > Agriculture & Food > Distribution, Processing & Storage Governments > Agriculture & Food > Product Promotions Torts > Remedies > Damages > General Overview

HN37 Texas general rule for assessing damages for crop loss is the market value of the lost part of the crop, as measured at maturity, less the cost of harvesting and marketing the lost part. The law does not demand perfect proof of damages for crop loss but liberally permits es- HN41 The costs of harvesting and marketing a crop include additional lease payments, graintimates of crop value and probable yield, as elevator costs, and transportation charges. Harwell as cultivating and marketing expenses. vesting and marketing expenses can be liberGovernments > Agriculture & Food > Distribution, Pro- ally estimated.
cessing & Storage Torts > Business Torts > Fraud & Misrepresentation > General Overview

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

Contracts Law > ... > Sales of Goods > Remedies > General Overview Torts > Business Torts > Fraud & Misrepresentation > General Overview

Judges: JUSTICE BAKER delivered the opinion of the Court, in which CHIEF JUSTICE PHILLIPS, JUSTICE ENOCH, JUSTICE HANKINSON, JUSTICE ONEILL, and JUSTICE JEFFERSON joined. JUSTICE ABBOTT filed a dissenting opinion in which JUSTICE HECHT and JUSTICE OWEN joined. Opinion by: James A. Baker
Opinion

HN39 A clause limiting recovery for breach of warranty is effective, even when brought under the Texas Deceptive Trade Practices--Consumer Protection Act, because the Act did not create warranty claims. However, the same does not hold true for other claims under the Act.

[*490] This is a case of first impression involving [*491] the Texas Seed Arbitration Act. 1 The Act requires that certain defective-seed claims be submitted to arbitration as a prerequisite to maintaining a legal action against the la-

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, *491; 2001 Tex. LEXIS 38, **1

beler. We must decide whether the timeliness requirement for submitting claims to arbitration is jurisdictional under the Act. We conclude that it is not, and that the evidence was legally sufficient to support the jurys verdict on liability, causation, and damages. Accordingly, we affirm the court of appeals judgment. [**2] I. BACKGROUND The Wilkinses began farming in 1989 and first planted grain in 1992. Most of their land is nonirrigated dryland. They purchased a Cherokee-variety grain sorghum seed from Helena Chemical Company in 1992, 1993, and 1994. The Wilkinses claim that when they purchased this seed, they relied on Helenas advertising that it had excellent dryland yield potential. Helena also represented that the seed had a good field tolerance to charcoal rot, a condition that causes the grains stem to weaken and fall down, reducing yield. The 1992 crop had a good yield, but the 1993 crop yield was much lower. The Wilkinses claim that Helenas agent blamed this low yield on the seeds being planted too close together and that the agent recommended planting Cherokee seed on the entire tract with increased spacing between seeds. The Wilkinses followed this advice in 1994 with no increase in yield. Helena claims that insufficient rainfall and soil moisture depletion brought about by the Wilkinses planting cotton on part of the property in 1993 caused the reduced yield.

Wilkinses on all claims except fraud. It did not find that Helena had acted knowingly. It awarded the Wilkinses $ 360,000 in damages. The trial court also awarded prejudgment interest from the date the Board declined to arbitrate. Helena and the Wilkinses appealed. The court of appeals held that Helena had effectively disclaimed any warranties. Helena Chem. Co. v. Wilkins, 18 S.W.3d 744, 758 (Tex. App. San Antonio 2000). But it affirmed the judgment on the DTPA claims, holding that the Boards refusal to arbitrate the Wilkinses claims did not jurisdictionally bar their suit. 18 S.W.3d at 751-52. It also held that the evidence was legally [**4] and factually sufficient to support the jurys verdict on causation, liability, and damages. 18 S.W.3d at 75459. Finally, in response to the Wilkinses crossappeal, the court held that the trial court properly calculated prejudgment interest. 18 S.W.3d at 760. Only Helena petitioned this Court for review. II. TEXAS SEED ARBITRATION ACT

Helena argues that the trial court did not have jurisdiction over the Wilkinses [*492] claims because the Act requires that all defective-seed claims first be timely submitted to nonbinding arbitration so the Board may effectively inspect the plants under field conditions. Thus, Helena argues, the Wilkinses delay in submitting their claims for arbitration--which In February 1995, the Wilkinses sued Helena al- caused the Board to refuse to arbitrate-jurisdictionally barred the claims. leging Deceptive Trade Practices--Consumer Protection Act (DTPA) [**3] violations, breach In response, the Wilkinses argue that submitof express and implied warranties, and fraud. ting their claims to arbitration is all the Act reIn March, Helena filed a plea in abatement and quires. They posit that Helenas interpretation motion to compel nonbinding arbitration unwould render other statutory provisions meander the Act. In April, the trial court granted Hel- ingless and note that the Act does not authoenas motion and abated the proceedings. Fifrize dismissal as a remedy under its arbitration teen months later, the Wilkinses submitted their procedures. Thus, the Wilkinses argue, the claims to the Texas Plant and Seed Board for court of appeals correctly held that once they arbitration. The Board declined to arbitrate be- submitted their [**5] claims to arbitration uncause the crops were no longer in field conder the Act, the trial court had jurisdiction to dition and thus the Board could not inspect the hear the claims regardless of whether arbitracrops. tion actually occurred. The trial court lifted the abatement and the case proceeded to trial. The jury found for the A. APPLICABLE LAW

47 S.W.3d 486, *492; 2001 Tex. LEXIS 38, **5

1. Texas Seed Arbitration Act HN1 The Legislature enacted the Act in 1989 to provide[] for an unbiased third party investigation by the State Seed and Plant Board of the Texas Department of Agriculture of complaints concerning seed performance. HOUSE COMM. ON AGRICULTURE AND LIVESTOCK, BILL ANALYSIS, Tex. S.B. 64, 71st Leg., R.S. (1989). Pertinent to this appeal, the Act provides:

HN4 (b) As a board of arbitration, the State Seed and Plant Board shall conduct arbitration as provided by this chapter . . . . TEX. AGRIC. CODE 64.005 (b) (emphasis added). 64.006. Arbitration Procedures

HN5 (a) A purchaser may begin arbitration by filing with the commissioner a sworn complaint and a filing fee, as provided by department [**7] rule. . . . Except in the case of seed that has not been planted, the complaint must be 64.002. Requirement of Arbitration filed within the time necessary to permit effective inspection of the plants under field conHN2 (a) When a purchaser of seed designed for planting claims to have been damaged by the ditions. failure of the seed to produce or perform as rep.... resented by warranty or by the label required to be attached to the seed under this sub[*493] (c) The commissioner shall refer the title or as a result of negligence, the purchaser complaint and the answer to the arbitration board must submit the claim to arbitration as profor investigation, findings, and recommendavided by this chapter as a prerequisite to the extions. ercise of the purchasers right to maintain a legal action against the labeler . . . . (d) On referral of the complaint for investigation, the arbitration board shall make a prompt TEX. AGRIC. CODE 64.002 (a) (emphasis and full investigation of the matters comadded). plained of and report its findings and recommendations to the commissioner not later than the 64.004. Effect of Arbitration 60th day after the date of the referral, or before a later date determined by the parties. HN3 In [**6] any litigation involving a complaint that has been the subject of arbitration under this chapter, any party may introduce the re- (e) The report of the arbitration board shall include findings of fact, conclusions of law, port of arbitration as evidence of the facts and recommendations as to costs, if any . . . . found in the report, and the court may give such weight to the arbitration boards findings .... of fact, conclusions of law, and recommendations as to damages and costs as the court de(h) The arbitration board shall consider any termines advisable. The court may also take into field inspection or other data submitted by eiaccount any findings of the board of arbitrather party in its report and recommendation. tion with respect to the failure of any party to cooperate in the arbitration proceedings, includTEX. AGRIC. CODE 64.006 (emphasis ing any finding as to the effect of delay in filing added). the arbitration claim or the arbitration boards ability to determine the facts of the 2. Statutory Construction case. HN6 We must construe statutes as written and, TEX. AGRIC. CODE 64.004 (emphasis if possible, ascertain legislative intent from added). the statutes language. Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985). [**8] Even when 64.005. Arbitration Board a statute is not ambiguous on its face, we can

47 S.W.3d 486, *493; 2001 Tex. LEXIS 38, **8

HN9 To determine whether the Legislature intended a provision to be mandatory or directory, we 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. Albertsons, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999); ChishAdditionally, HN7 we must always consider olm v. Bewley Mills, 155 Tex. 400, 287 the statute as a whole rather than its isolated pro- S.W.2d 943, 945 (Tex. 1956). HN10 Even if a statutory requirement is mandatory, this does visions. Morrison, 699 S.W.2d at 208. We not mean that compliance is necessarily jurisdicshould not give one provision a meaning out tional. Sinclair, 984 S.W.2d at 961; Hines v. of harmony or inconsistent with other provisions, although it might be susceptible to such a Hash, 843 S.W.2d 464, 467 (Tex. 1992); construction standing alone. Barr v. Bernhard, Schepps v. Presbyterian Hosp. of Dallas, 652 562 S.W.2d 844, 849 (Tex. 1978). We must pre- S.W.2d 934, 938 (Tex. 1983). HN11 When a sume that the Legislature intends an entire stat- statute is silent about the consequences of nonute to be effective and that a just and reasoncompliance, we look to the statutes purpose able result is intended. TEX. GOVT CODE to determine the proper consequences. Sinclair, 311.021(2),(3).HN8 984 S.W.2d at 961; Schepps, 652 S.W.2d at 937 -38; Chisholm, 287 S.W.2d at 945. [**11] B. When [**9] used in a statute, the term must ANALYSIS creates or recognizes a condition precedent. TEX. GOVT CODE 311.016(3). While Texas The parties agree that if the Wilkinses had not courts have not interpreted must as often as submitted their claims to arbitration after the shall, both terms are generally recognized as trial court abated the proceedings, any claims mandatory, creating a duty or obligation. Seesubject to the Act would be jurisdictionally TEX. GOVT CODE 311.016(2), (3); Wright v. barred. See TEX. AGRIC. CODE 64.002(a) Ector County Indep. Sch. Dist., 867 S.W.2d (HN12 The purchaser must submit the claim to 863, 868 (Tex. App.--El Paso 1993, no writ) arbitration . . . as a prerequisite to the exer(The ordinary meaning of shall or must is cise of the purchasers right to maintain a legal of a mandatory effect.); Inwood N. Homeown- action against the labeler.); see also Hines, ers Assn, Inc. v. Meier, 625 S.W.2d 742, 843 S.W.2d at 469 (holding failure to perform 743 (Tex. Civ. App.--Houston [1st Dist.] 1981, mandatory but nonjurisdictional act while suit is no writ) (same); Mitchell v. Hancock, 196 abated for that purpose results in dismissal). S.W. 694, 700 (Tex. Civ. App.--Fort Worth 1917, However, because the Wilkinses did submit their no writ) (same). The word must is given a claims to the Board, the only issue is whether mandatory meaning when followed by a non- their delay in doing so, and the Boards subsecompliance penalty. Harris County Apquent refusal to arbitrate, deprived the trial praisal Dist. v. Consolidated Capital Props. IV, court of jurisdiction. 795 S.W.2d 39, 41 (Tex. App.--Amarillo 1990, writ denied). However, we have held lan- Helena argues that section 64.006(a)s requireguage that appears to impose a mandatory ment that a complaint be filed within the duty to be only directory when this interpretatime necessary to permit effective inspection of tion is most consistent with the Legislatures in- the plants under field conditions is mandatent. E.g., Barshop v. Medina County Undertory and jurisdictional. The Wilkinses acknowl-

consider other factors to determine the Legislatures intent, including: the object sought to be obtained; the circumstances of the statutes enactment; the legislative history; the common law or former statutory provisions, including laws on the same or similar subjects; the consequences of a particular construction; administrative construction of the statute; and the title, preamble, and emergency provision. TEX. GOVT CODE 311.023; Ken Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344, 350 (Tex. 2000).

ground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996); [**10] Lewis v. Jacksonville Bldg. & Loan Assn, 540 S.W.2d 307, 310 (Tex. 1976); [*494] Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625, 630-31 (Tex. 1948).

47 S.W.3d 486, *494; 2001 Tex. LEXIS 38, **11

edge this statutory timing requirement, but argue that submission is the mandatory act and that timeliness is merely a factor the trial [**12] court may consider. We agree with the Wilkinses interpretation. HN13 Section 64.006(a) states that a purchasers complaint must be filed within the time necessary to permit effective inspection under field conditions. The word must creates or recognizes a condition precedent. TEX. GOVT CODE 311.016(3). The Legislature has instructed us to apply this definition unless its context necessarily requires a different construction. TEX. GOVT CODE 311.016.

mission to arbitration where the Board then refuses to arbitrate. Rather, the Legislature created this arbitration scheme to provide an alternate forum for farmers to initially submit claims, not as a mechanism to preclude farmers suits altogether. See HOUSE COMM. ON AGRICULTURE AND LIVESTOCK, BILL ANALYSIS, Tex. S.B. 64, 71st Leg., R.S. (1989) (explaining that one reason this Act was passed was that farmers are often [**14] reluctant to litigate seed disputes).

In addition to the overall statutory objective, we have historically looked to two factors to determine if the Legislature intended a provision to be jurisdictional: (1) the presence or abThe problem with Helenas position that delay in sence of specific consequences for submitting a claim to arbitration creates a junoncompliance, Sinclair, 984 S.W.2d at 961risdictional bar is that we cannot read section 62, and (2) the consequences that result from 64.006(a) in a vacuum. Read in context, Heleach possible interpretation. Barshop, 925 enas interpretation renders other provisions S.W.2d at 629. Applying these factors supports meaningless. In fact, section 64.004 exour interpretation that delay in submitting pressly contemplates that a claim may be arbi- claims is not jurisdictional. trated and continue on to trial even when a delay in submission to arbitration prevents the HN15 To determine whether a timing proviBoard from thoroughly investigating the sion is mandatory, we first look to whether the claim. It provides: statute contains a noncompliance penalty. If a provision requires that an act be performed HN14 In any litigation involving a complaint within a certain time without any words rethat has been the subject of arbitration under straining the acts performance after that time, this chapter . . . the court may also take into the timing provision is usually directory. account any findings of the board of arbitration Lewis, 540 S.W.2d at 310; Markowsky v. Newwith respect to the failure [**13] of any man, 134 Tex. 440, 136 S.W.2d 808, 812 party to cooperate . . . including any finding as (Tex. 1940). Here, HN16 the Act states that a to the effect of delay in filing the arbitration purchasers complaint must be filed within the claim or the arbitration boards ability to deter- time necessary to permit effective inspection mine the facts of the case. of the plants under field conditions. TEX. AGRIC. CODE 64.006(a). [**15] However, TEX. AGRIC. CODE 64.004 (emphasis the Act has no corresponding provision dictatadded). Accepting Helenas argument that secing dismissal for noncompliance. State v. $ tion 64.006(a)s timing requirement is 435,000, 842 S.W.2d 642, 644 (Tex. 1992) [*495] jurisdictional renders section 64.004 (If the Legislature had intended dismissal to meaningless because in any case involving a complaint that has been the subject of arbitra- be the consequence of a failure to hear a forfeiture case within the prescribed period, it tion under this chapter, there could not be a finding as to the effect of delay in filing . . . or could easily have said so.); see also Sinclair, 984 S.W.2d at 962 (That section 410.253 does the arbitration boards ability to determine the not dictate the consequence of noncompliance facts of the case. is significant when considering the entire statActually, the Acts language and purpose dem- ute.). To the contrary, the Act expressly provides nonjurisdictional consequences by allowonstrate that the Legislature simply did not contemplate the situation presented here--a sub- ing the Board to make findings about any

47 S.W.3d 486, *495; 2001 Tex. LEXIS 38, **15

ducted field inspections that they could have submitted to the Board to aid it in fulfilling its duties. See TEX. AGRIC. CODE 64.006(h) (The arbitration board shall consider any field inspection or other data submitted by either party.) (emphasis added). Thus, because the Board can conduct an investigation despite a deHN17 When deciding whether the Legislature lay in submission to arbitration, concluding intended a particular provision to be jurisdic- that section 64.006(a)s timing requirement is tional, we must also consider the consenonjurisdictional does not thwart the Acts purquences that result from each possible construc- pose of providing for a Board investigation. tion. Chisholm, 287 S.W.2d at 945-46. Under See Hines, 843 S.W.2d at 469 (holding statHelenas interpretation, a delay in submitting a utes purpose could be furthered without jurisclaim [**16] to arbitration precludes any condictional interpretation of mandatory timing sideration of the claim--by the Board or a trial requirement). court. Because the Boards arbitration is nonbinding and the trial court is not required to con- Further, [**18] our interpretation does not rensider the Boards findings, we conclude that der a delay in submitting a claim to arbitraHelenas jurisdictional interpretation of section tion without consequence. Indeed, HN20 if a 64.006s timing requirement leads to an abpurchaser does not submit a claim in time for the surd result. See Barshop, 925 S.W.2d at 629. Board or the seller to conduct an effective field inspection, it does so at its own peril. The Helena urges that our adopting a nonjurisdicBoard may make findings adverse to the purtional interpretation allows purchasers to by- chaser on this basis. TEX. AGRIC. CODE pass the Act and thwart its underlying pur64.004. If the purchaser then sues, the pose of providing for an unbiased, independent Boards findings and recommendations are admissible, and the Act expressly authorizes Board investigation. See HOUSE COMM. the court to both give such weight to the arbiON AGRICULTURE [*496] AND LIVESTOCK, BILL ANALYSIS, Tex. S.B. 64, 71st tration boards findings of fact, conclusions of law, and recommendations as to damages and Leg., R.S. (1989). We disagree. costs as the court determines advisable and HN18 The Act permits the Board to indepentake into account any findings . . . with redently investigate and assess the purchasers spect to the failure of any party to cooperate in claims. TEX. AGRIC. CODE 64.006(d). the arbitration proceedings, including any findBut, while the Act requires the Board to coning as to the effect of delay in filing the arbitrasider any field inspection or other data either tion claim. TEX. AGRIC. CODE 64.004. party submits, nowhere does it require the We conclude that these consequences--not the Board itself to conduct a field inspection; nor complete deprival of any right to have the claims does it expressly mention the Board conduct- heard in any forum--are the consequences the ing such an inspection. See TEX. AGRIC. Legislature contemplated under the Act. CODE 64.006(f)-(h). Instead, HN19 by the Acts express terms, [**17] the Board can carry The dissent disagrees with this conclusion, asserting that the Act absolutely [**19] foreout its investigation in a number of ways that do not necessarily require it to conduct its own closes a purchasers action if the purchaser does field inspection. For example, the Act authonot comply with section 64.006(a)s timing rerizes the Board to delegate all or any part of its quirement. 47 S.W.3d 486, 2001 Tex. LEXIS investigation to its members. TEX. AGRIC. 38, *63. The dissent notes section 64.006s lanCODE 64.006(g). And the Board may grow guage that the complaint must be filed representative samples, conduct hearings, and within the time necessary to permit effective examine the parties. TEX. AGRIC. CODE crop inspection. 47 S.W.3d 486, 2001 Tex. LEXIS 64.006(f). In fact, here both parties experts con- 38, *50-51. It then reconciles this language

delay and allowing the trial court to consider these findings. See TEX. AGRIC. CODE 64.004. Thus, we conclude the Acts silence about dismissal, coupled with its provision for other consequences, weighs in favor of a nonjurisdictional interpretation.

47 S.W.3d 486, *496; 2001 Tex. LEXIS 38, **19

der 64.006(a)--rendering section 64.004s provision for the Board to make findings about delay in submitting the claim meaningless. The dissent also urges us to adopt the Florida Supreme Courts interpretation of a prior version of its Seed Act because our statutes legislative history indicates that our statute was modeled in part after Floridas. See FerryMorse Seed Co. v. Hitchcock, 426 So. 2d 958, 961 (Fla. 1983) (holding Florida Seed Acts arbitration submission timing requirement jurisdictional). There is only one reference to Florida in our Acts bill analysis. The background section notes that for many years the state of However, while purporting to apply a plainFlorida has used a method of arbitration with language analysis to section [*497] 64.006(a), an unbiased third party investigation and opinthe dissent glosses over the sections actual lan- ion and that the American Seed Trade Assoguage and ignores the maxim that HN21 we ciation has recommended to each of its memmust presume that every word in a statute is in- ber states that they work to pass measures cluded purposefully. See Cameron v. Terrell similar to Floridas. HOUSE COMM. ON AG& Garrett, Inc., 618 S.W.2d 535, 540 (Tex. RICULTURE AND LIVESTOCK, BILL 1981). First, the dissents interpretation [**20] ANALYSIS, Tex. S.B. 64, 71st Leg., R.S. assumes the Board itself must conduct the (1989). field inspection referenced in section 64.006(a). We recognize that HN23 when a Texas statute The Acts text does not support this assumption. Instead, HN22 the Act provides that a com- is modeled after another jurisdictions, that jurisdictions [**22] interpretation before the plaint must be filed in time to permit effecLegislature enacts our statute may be given tive inspection of the plants under field conditions, TEX. AGRIC. CODE 64.006(a), weight. City of Garland v. Dallas Morning thus permitting the parties to inspect under News, 22 S.W.3d 351, 360 (Tex. 2000). Howfield conditions and provide their reports to the ever, when the Legislature looks to another jurisdictions statute, but modifies rather than Board. TEX. AGRIC. CODE 64.006(h). Second, the dissents interpretation presumes that adopts some of its provisions, it does so purposefully. See Sharifi v. Young Bros., Inc., 835 any claim submitted while crops are still in the ground will satisfy section 64.006(a)s lan- S.W.2d 221, 223 (Tex. App.--Waco 1992, writ guage. 47 S.W.3d 486, 2001 Tex. LEXIS 38. denied). However, section 64.006 does not only require When the Legislature enacted the Texas Act, that a claim be submitted while the crops are the Florida Seed Act provided that a purchaser available for inspection under field condi- must submit its claim to arbitration within tions. Rather, it states a claim must be filed such time as to permit inspection of the crops, in time to permit an effective inspection of the plants, or trees by the seed investigation and plants under field conditions. TEX. AGRIC. conciliation council or its representatives and by CODE 64.006(a) (emphasis added). We must the dealer from whom the deed was purpresume the word effective has meaning. chased. FLA. STAT. ANN. 578.026(1)(a) See Cameron, 618 S.W.2d at 540. Thus, under (emphasis added). In Ferry-Morse Seed Co., the the dissents interpretation of 64.006(a), any case upon which the dissent relies, the claim brought while the crops are [**21] in the Florida Supreme Court interpreted a prior verground but after an effective inspection could sions timing requirement to be jurisdicbe accomplished would already be barred un- tional. 426 So. 2d at 961. This prior version required a claim be filed within ten days after with section 64.004 by interpreting section 64.004 to permit Board findings about a purchasers delay only while the crops are still in the ground. 47 S.W.3d 486, 2001 Tex. LEXIS 38, *55-56. It explains that [a] purchaser could certainly delay filing an arbitration complaint for many months yet still file while the seeds are under field conditions. 47 S.W.3d 486, 2001 Tex. LEXIS 38, *55-56. Thus, it reasons, submitting a claim while the seeds are in the ground, but after a hot summer season, could affect the Boards investigation. 47 S.W.3d 486, 2001 Tex. LEXIS 38, *56.

47 S.W.3d 486, *497; 2001 Tex. LEXIS 38, **22

the defect or violation becomes apparent. See Ferry-Morse Seed Co., 426 So. 2d at 960. There are two important [**23] differences between the Texas [*498] and Florida Acts. First, the Florida Acts current version specifies that the Board and the seed seller must both be able to conduct an independent field inspection. The Texas Act has no such language. Second, and more significant, neither version of Floridas Act provides for the Board to make findings about the effect of the purchasers delay in submitting a claim to arbitration as section 64.004 of the Texas Act does. Thus, while we might be inclined to adopt Floridas interpretation that timely submitting to arbitration is jurisdictional if its statute were identical to ours, we are not bound to interpret one similar provision of our Act in a way that conflicts with other provisions that differ from Floridas statute.

vide for dismissal as a consequence for noncompliance with its arbitration provisions weighs in favor of a directory interpretation. Presley, 683 N.E.2d at 909. Likewise, it concluded that interpreting the nonbinding arbitration procedures as jurisdictional would lead to an absurd result. Presley, 683 N.E.2d at 909.

We agree with the Florida Supreme Courts observation that seed arbitration laws are established to protect the farmer. Ferry-Morse Seed Co., 426 So. 2d at 961. [**25] Thus, HN24 when, as here, we are faced with two competing interpretations, we must choose the one most harmonious with the Acts objectives and other provisions. Accordingly, we conclude that while submission to arbitration under the Act is mandatory if not waived by the seller, the Acts timing requirement is not. See Hines, 843 S.W.2d at 469; $ 435,000, 842 S.W.2d at 644. Because the Wilkinses submitFinally, while we base our interpretation on the ted their claims to arbitration and thus comActs language and the Legislatures intent, plied with the Acts mandatory requirements, we note that one other court has had occasion the trial court correctly concluded that it had juto interpret its Seed Acts similar arbitration pro- risdiction over their claims. visions. Illinois Seed Act provides: III. EXPERT TESTIMONY A purchaser of seed cannot maintain a civil action against the seller for failure of the seed Helena argues that the trial court abused its disto produce or perform (i) as represented by a la- cretion by admitting the Wilkinses experts bel attached to the seed or furnished under testimony. The expert, Dr. Pleunneke, testified the Illinois [**24] Seed Law, (ii) as reprethat in his opinion, Cherokee seed is not approsented by warranty, or (iii) because of neglipriate for dryland farming and thus did not pergence, unless the buyer has first submitted the form as represented. Helena contends that Pleclaim to arbitration. unneke lacked the required qualifications and that his testimony lacked the indicia of reli.... ability required for admission. The court of appeals held the trial court did not abuse its disExcept in case of seed that has not been cretion by admitting Pleunnekes testimony. 18 planted, the claim shall be filed within a time S.W.3d at 754. We agree with the [**26] that will permit effective inspection of the plants court of appeals. under field conditions and in no case later than 90 days after completion of harvest.701 [*499] A. APPLICABLE LAW ILL. COMP. STAT. 25/10, 25/20 (emphasis added). In Presley v. P&S Grain Co., the Illi- HN25 If scientific, technical, or other specialized knowledge will assist the trier of fact to unnois court of appeals held this timing requirement to be directory rather than mandatory. 289 derstand the evidence or to determine a fact in issue, a witness qualified as an expert by Ill. App. 3d 453, 683 N.E.2d 901, 910, 225 knowledge, skill, experience, training, or educaIll. Dec. 398 (Ill. App. Ct. 1997). It reasoned, as we have here, that the statutes failure to pro- tion may testify thereto in the form of opin-

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

ion or otherwise. TEX. R. EVID. 702. Otherwise admissible opinion testimony is not objectionable because it embraces an ultimate issue of fact. TEX. R. EVID. 704. HN26 A two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and be based on a reliable foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). The trial court makes the initial determination about whether the expert and the proffered testimony meet these requirements. Robinson, 923 S.W.2d at 556. HN27 The trial court has broad discretion to determine admissibility, and we will reverse only if there is an abuse of that discretion. Robinson, 923 S.W.2d at 558.

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). Further, an experts testimony is unreliable even when the underlying data is sound if the experts methodology is flawed. Havner, 953 S.W.2d at 714.B. ANALYSIS1. Qualifications

Pleunneke testified that he grew up on a ranch. He earned a bachelors degree in wildlife management from Texas A&M University. He then worked in a banks trust department managing farm and ranch lands in Texas and Louisiana. During this time he worked with many different types of crops, including grain sorghum. He then returned to school and finished a doctorate in plant physiology. Afterwards, he worked with crops for Mississippi State Universitys Agronomy and Biochemistry Department. At this job, he conducted crop-variety testHN28 In deciding if an expert is qualified, ing, predominantly on soybean crops, and he trial courts must ensure that those who purwas quite familiar with setting up tests and so port to [**27] be experts truly have expertise forth and seeing which varieties are best. concerning the actual subject about which they For the past twenty years he [**29] has worked are offering an opinion. Gammill v. Jack Wilin Texas as a plant scientist and consultant. liams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. He characterized some of his functions [*500] 1998) (quoting Broders v. Heise, 924 S.W.2d as working on different problems related to 148, 152 (Tex. 1996)). To gauge reliability, we plant science, science pertaining to the physiolhave explained: ogy of plants, malnutrition, the way the enviDaubert and Rule 702 demand that the district ronment affects them and so forth. In fact, the Wilkinses initially hired him, not as a litigacourt evaluate the methods, analysis, and principles relied upon in reaching the opinion. The tion expert, but as a consultant to help them identify the source of their crop problems. court should ensure that the opinion comports with applicable professional standards out- Helena notes that Pleunneke is not a plant paside the courtroom and that it will have a reli- thologist and argues that his testimony does not able basis in the knowledge and experience establish he is an expert about charcoal rot. of the discipline.Gamill, 972 S.W.2d at 725-26 However, this argument incorrectly frames the (quotations omitted). In Robinson, we identiissue. The Wilkinses allege Helena misreprefied six nonexclusive factors to determine sented Cherokee seeds fitness for use in a nonwhether an experts testimony is reliable and irrigated environment. Accordingly, the facthus admissible. Robinson, 923 S.W.2d at 557. tual issue is not solely whether Cherokee is But in Gammill we recognized that the Robsusceptible to charcoal rot. Also at issue is inson factors may not apply to certain testiwhether Cherokee is particularly suited for drymony. Gammill, 972 S.W.2d at 726. In those in- land farming as Helena represented. stances, HN29 there still must be some basis for the opinion offered to show its reliability, The causation evidence in this case included: and, ultimately, the trial court must determine seed performance trial results, the Wilkinses [**28] how to assess reliability. Gammill, farms current and past performance, the cur972 S.W.2d at 726. If an expert relies upon un- rent and past performance of the Wilkinses reliable foundational data, any opinion drawn neighbors farm, and weather and soil statisfrom that data is likewise unreliable. Merrell tics. In response to this evidence, Helena con-

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

tended that environmental [**30] factors, not Cherokee seeds drought intolerance, led to the Wilkinses poor crop. Thus, to determine whether Pleunneke is a qualified expert, the question is whether Pleunneke has scientific, technical, or other specialized knowledge that would assist the jury to understand this evidence and determine if Cherokee seed is suitable for dryland farming as represented. See TEX. R. EVID. 702. We conclude that Pleunnekes knowledge would aid the jury in understanding the evidence. Several grain performance trial results were entered into evidence. Pleunneke has experience conducting crop trials, and, presumably, experience interpreting and comparing those results. Also, as a plant-science consultant, he works on different problems related to plant science, science pertaining to the physiology of plants, malnutrition, the way the environment affects them and so forth. Because Helena contends environmental factors caused the Wilkinses crop failure rather than Cherokee seeds drought intolerance, Pleunnekes experience identifying environmental factors affecting crops could have been helpful to the jury. Accordingly, we conclude that the court of appeals correctly held that the trial [**31] courts finding Pleunneke qualified was not an abuse of discretion. 2. Reliability

bors soil and plants; lab analysis results from his field samples; South Texas rainfall statistics during the relevant period; Texas A&M grainsorghum trials; Texas A&M grain-sorghum literature; publications by Dr. Fredrickson, a Texas A&M plant pathologist who is a grainsorghum expert; Helenas soil and plant samples and analyses; and Helenas marketing literature. Helena does not argue that this foundational data [**32] underlying Pleunnekes opinion testimony is unreliable. [*501] Moreover, Pleunneke has twenty years experience as a plant scientist and conducting and interpreting crop trials. While testifying, Pleunneke explained the results of several grain trials, why he found those to be significant, and how they supported his opinions. He also explained the other factors that contributed to his opinion, and why they were significant to his conclusions. These other factors included weather and weed-control reports, disease publications, testing, and comparison with crops adjacent to the Wilkinses farm. Thus, Pleunnekes experience, coupled with his thorough testimony about the methodology he employed, demonstrate that the opinions he drew from the underlying data are reliable. See Gammill, 972 S.W.2d at 726. Thus, we conclude that the court of appeals correctly held that the trial court did not abuse its discretion by admitting Pleunnekes testimony. IV. DTPA CLAIMS

Helena also contends that Pleunnekes testimony is unreliable because he is not qualified to testify about charcoal rot and because he does not state the basis and the methodology behind his opinion. Again, Helena fails to recognize that the issue here is whether Cherokee seed is suitable for dryland farming as Helena represented. And it ignores the numerous bases underlying Pleunnekes opinion and his qualifications. Pleunneke testified that, in forming his opinions, he relied on a number of things: a physical inspection of the Wilkinses Cherokee crop; photographs and videotape of the Wilkinses field; samples of the Wilkinses soil and plants; samples of the Wilkinses neigh-

Helena argues that the Wilkinses failure to timely submit their claims to arbitration under the Act also precludes the trial court from considering their DTPA claims. In the alternative, it argues that there [**33] is no evidence to support the jurys DTPA liability and causation findings. Specifically, Helena argues that any representations it made amounted to nonactionable puffing. A. RELATIONSHIP BETWEEN THE DTPA AND THE TEXAS SEED ARBITRATION ACT Helena argues that if the Act governs any part of a suit, then all the purchasers claims must be

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

services have [*502] . . . characteristics, ingredients, uses, [or] benefits . . . which they do not have and representing that goods or services are of a particular standard, quality, or grade . . . if they are of another. Section 17.46(b)(23) prohibits the failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed. B. EVIDENCE TO SUPPORT DTPA JURY Section 17.50 provides the remedy for violaQUESTIONS tions of the laundry-list provisions of 17.46(b) and for any unconscionable action or The trial court submitted two DTPA questions course of action by any person. Actionable repto the jury. The first question asked, in the dis- resentations may be oral or written. Hedley junctive, whether Helena had violated three Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, DTPA laundry-list provisions: sections 838 (Tex. App.--Amarillo 1993, writ denied). 17.46(b)(5) (misrepresentations about a prodHN32 A party need not prove intent to make a ucts characteristics), 17.46(b)(7) (misrepresen- misrepresentation under sections 17.46(b)(5) tations about a products standard, quality, or 17.46(b)(7)--making the false representation [**34] or grade), or 17.46(b)(23) (failure to dis- is itself actionable. Smith v. Baldwin, 611 close information with intent to induce anS.W.2d 611, 616-17 (Tex. 1980). other to enter transaction). SeeTEX. BUS. & HN33 To recover under the DTPA, the plainCOM. CODE 17.46. The second question asked only whether Helena violated section tiff must also show that the defendants actions [**36] were the producing cause of actual 17.50(a)(3) (unconscionable action or course damages. See TEX. BUS. & COM. CODE of action). See TEX. BUS. & COM. CODE 17.50. The jury answered both questions yes. 17.50(a). This showing requires some evidence that the defendants act or omission was a cause in fact of the plaintiffs injury. Doe Helena argues that there is no evidence to support the jurys answers. Specifically, it argues v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. 1995). Under this stanthat any representations made to the Wilkinses amounted to nonactionable puffing and that dard, it is not necessary to show that the harm was foreseeable. Boys Club of Greater there is no causation evidence. The court of appeals held there was some evidence to support Dallas, Inc., 907 S.W.2d at 481. the jurys answers to both questions. 18 S.W.3d at 755-57. We agree with the court of ap- The DTPA does not mention puffing as a defense. However, this Court has recognized peals. that HN34 mere puffing statements are not actionable under sections 17.46(b)(5) or 17.46 1. Applicable Law (b)(7). Pennington v. Singleton, 606 S.W.2d 682, HN30 The DTPA prohibits false, misleading, 687 (Tex. 1980). Neither this Court nor any or deceptive acts or practices in the conduct of court of appeals has extended the puffing deany trade or commerce. TEX. BUS. & COM. fense to violations of sections 17.46(b)(23) (failCODE 17.46(a). HN31 Section 17.46(b) is a ure to disclose) or 17.50(a)(3) (unconsciolaundry list of specifically prohibited acts. Secnable conduct). tions 17.46(b)(5) and 17.46(b)(7) prohibit false, misleading, or deceptive acts or practices inHN35 In conducting a no-evidence review, we cluding . . . representing that [**35] goods and must view the evidence in a light that tends arbitrated, regardless of the theory of recovery. The dissent agrees, concluding that all the Wilkinses theories are factually intertwined, and thus that their DTPA claims cannot provide an alternative basis for the trial courts judgment. Because we conclude that the Wilkinses complied with the Act and hold that their delay in submitting their claims to arbitration did not bar their suit, determining whether the DTPA claims are within the Acts purview is not necessary here.

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

to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992). If more than a scintilla [**37] of evidence exists, the evidence is legally sufficient to support the finding. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993).2. Analysis The Wilkinses offered the following evidence to support their DTPA claims: (1) Kenny Wilkins testimony that he read Helenas seed brochure (PX-25) before purchasing Cherokee seed and that he would not have planted Cherokee in 1993 and 1994 had the brochure not represented Cherokee was a good dryland variety.

tion, performing and producing in spite of the disorder. (7) A Helena agents testimony that tolerance to charcoal rot is known to occur in grain sorghum. In this case the plant may develop a disease but may escape the full development of symptoms and produce some level of harvestable yield which it could not otherwise do in the absence of the tolerance phenomenon. (8) The Wilkinses testimony that they relied upon the Helena agents oral representations.

(9) Testimony indicating that it is reasonable and customary for farmers to rely on oral representations and advice from seed companies representatives and that, in fact, the neighboring farms owner also relies on advice from his (2) The PX-25 brochures description of Chero- seed company representative. kee seed as one of the most durable, top yield- (10) [**39] Another Helena agents represening hybrids with an outstanding disease toltations that Cherokee seed was a good dry erance package. land variety and that it would hold up well under the dry land conditions, and his recom(3) The PX-25 brochures grain sorghum mendation that the Wilkinses plant Cherokee lineup chart stating that Cherokee seed has seed. good head exertion, very good standability, excellent yield potential in drylands, and (11) A Helena representatives statement that that it is FD [field] tolerant to charcoal rot. the Wilkinses had planted too thick and that if they would plant Cherokee on the whole lot, (4) Helenas written representation that its sor- but with greater spacing, the plants will go ghum hybrids constitute our best research ahead and perform. and development efforts, that Cherokee seed has excellent weatherability, that Cherokee Helena argues that its alleged misleading statements are not statements of fact, but constiseed is the tough performer, and that it has tute, if anything, nonactionable opinion or puffthe stamina and [*503] hardiness to withstand the harsh conditions from the Texas coastal ing. It relies extensively on Autohaus, Inc. v. Aguilar, where the court of appeals held that an bend [**38] across the lower south to the automobile salesmans stating that Mercedes Carolinas. is the best-engineered automobile in the world and joking that the car would probably (5) Testimony that the Wilkinses did not expect a FD tolerant plant would be affected by only need to be brought in for oil changes every 7,500 miles was nonactionable puffing. 794 charcoal rot and that they understood tolerS.W.2d 459, 464 (Tex. App.--Dallas 1990), ant to mean that if there was an acceptable level of something out in the field it would be writ denied per curiam, 800 S.W.2d 853 (Tex. 1991). The court noted that these two sentolerant to it. tences were the extent of the evidence presented to show the misrepresentation by the (6) The American Seed Associations (of which Helena is a member) definition of toler- salesman. Aguilar, 794 S.W.2d at 464. It also [**40] noted that the terms probably and ant as the ability of plants to endure a specijoked demonstrated the generality of the statefied pest or an adverse environmental condi-

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

Wilkins explained that the cotton-grain rotation is required by the local crop-management ofHere, the Wilkinses evidence reflects specific fice; his neighbor rotated cotton and grain on representations about Cherokee seeds character- certain portions of his [**42] acreage withistics and specific representations about how out adverse effects; and the alleged over plantthe Wilkinses crop in particular would pering occurred because the Wilkinses followed form. We conclude some of the representations the recommendations of Helena in planting their in this case are much more specific than 1993 crop.18 S.W.3d at 756. Thus, we conthose in Aguilar and are more analogous to rep- clude the Wilkinses presented some evidence resentations held actionable in other cases. of producing cause. In sum, there is some eviSee, e.g., Pennington, 606 S.W.2d at 687 (hold- dence to support a finding that Helena vioing representations that used boat and motor lated sections 17.46(b)(5) and 17.46(b)(7). This were in excellent condition, perfect condifinding is sufficient to support the jurys vertion, and just like new were actionable mis- dict. Thus, the court of appeals correctly held representations about characteristics and benthat there is some evidence of DTPA violaefits); Hedley Feedlot, Inc., 855 S.W.2d at 831, tions and that Helenas puffing defense did not 838-39 (holding cattle sellers representations defeat liability under the DTPA. to a buyer about the type of cattle, weight, projected cost of feeding, the length of [*504] V. DAMAGES time on feed, and the projected gain of the cattle were actionable under the DTPA); Gold Kist, Finally, Helena argues that there is no evidence Inc. v. Massey, 609 S.W.2d 645, 646-47 (Tex. to support the jurys $ 360,000 damages App.--Fort Worth 1980, no writ) (holding repaward. The court of appeals held there was eviresentations about seed-germination rate were dence to support this amount. 18 S.W.3d at actionable [**41] under the DTPA). Thus, 759. We agree with the court of appeals. viewing the evidence in a light most favorable to the jurys findings, we conclude that there A. APPLICABLE LAW is some evidence of misrepresentations about HN36 Recovery for lost profits does not reCherokee seeds characteristics, quality, and quire that the loss be susceptible to exact calcugrade amounting to more than mere puffing. lation. Texas Instruments, Inc. v. Teletron EnHelena also argues that there is no evidence that ergy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994). However, the injured party must do its actions were the producing cause of the more than show that it suffered some lost profWilkinses injuries because the Wilkinses did not exclude other possible causes for the crop its. Teletron Energy Mgmt., Inc., 877 S.W.2d at 279. [**43] The loss amount must be shown failure. Specifically, Helena contends that the Wilkinses depleted their soil by planting cot- by competent evidence with reasonable certainty. Szczepanik v. First S. Trust Co., 883 ton the prior year. S.W.2d 648, 649 (Tex. 1994); Holt Atherton InThe Wilkinses presented evidence about Chero- dus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. kees unsuitability for dryland farming. This 1992). This is a fact-intensive determination. evidence included their crops performance, Heine, 835 S.W.2d at 84. At a minimum, opintheir neighbors crop performance, several seed ions or lost-profit estimates must be based on performance trial results, and South Texas rainobjective facts, figures, or data from which the fall statistics. The Wilkinses expert, Dr. Pleun- lost-profits amount may be ascertained. Szcneke, testified that Cherokee seed does not prozepanik, 883 S.W.2d at 649; Heine, 835 S.W.2d duce a good yield in a nonirrigated environment. at 84. The Wilkinses also presented evidence excluding other causes. The court of appeals summarized this evidence: HN37 Texas general rule for assessing damages for crop loss is the market value of the lost part of the crop, as measured at maturity, less

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

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

the cost of harvesting and marketing the lost part. International Harvester Co. v. Kesey, 507 S.W.2d 195, 197 (Tex. 1974). The law does not demand perfect proof of damages for crop [*505] loss but liberally permits estimates of crop value and probable yield, as well as cultivating and marketing expenses. International Harvester Co., 507 S.W.2d at 197.B. ANALYSIS Helena argues that the Wilkinses damages should have been limited to the Cherokee [**44] seeds purchase price. Helena relies upon the limitation of liability and remedies clause printed on its invoices, delivery tickets, and seed label. The DTPA provides that HN38 any waiver by a consumer of the provisions of this subchapter is contrary to public policy and is unenforceable and void. TEX. BUS. & COM. CODE 17.42(a). HN39 We have held that a clause limiting recovery for breach of warranty is effective, even when brought under the DTPA, because the DTPA did not create warranty claims. Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 576-77 (Tex. 1991). However, the same does not hold true for other DTPA claims. FDP Corp., 811 S.W.2d at 576-77. Thus, Helenas liabilitylimitation clauses cannot preclude the Wilkinses lost-profit recovery for nonwarranty representations or unconscionability.

S.W.2d at 279. However, lack of a profit history does not, by itself, preclude a new business from recovering lost future profits. See, e.g., Orchid Software, Inc. v. Prentice-Hall, Inc., 804 S.W.2d 208, 211 (Tex. App.--Austin 1991, writ denied). Rather, our focus is on whether damages can be shown with reasonable certainty. E.g., Szczepanik, 883 S.W.2d at 649. This can be accomplished with a profit history or some other objective data, such as future contracts, from which lost profits can be calculated 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.2d 49, 54-55 (Tex. App.--Houston [1st Dist.] 1987, writ [**46] refd n.r.e).

To establish their lost profits with reasonable certainty, the Wilkinses had to show: (1) the lost crops market value, and (2) the harvesting and marketing expenses they would have incurred on that lost part. International Harvester Co., 507 S.W.2d at 197. To calculate their lost crops market value, the Wilkinses relied upon the United States Agriculture Stabilization and Conservation Services farm-yield data. Each year the USASC measurement service gathers crop yield information from sorghum growers. The Wilkinses took the average sorghum yield per acre and subtracted their actual per acre yield, as evidenced by sales receipts. Then they multiplied this resulting Alternatively, Helena argues that there is no evi- deficit by the number of acres planted and muldence to support the jurys damage award betiplied this figure by the market price. The recause prior losses cannot establish lost profits sult was $ 129,170.95 for 1993 and $ 361,684.63 and because the Wilkinses did not prove their for 1994. They submitted the $ 490,855.58 todamages with reasonable certainty. Specifically, tal to the jury as their estimated damages. Helena argues that deducting government sub[*506] To reach an estimated lost-profits figsides and disaster relief from the Wilkinses ure, the cost of harvesting and marketing the [**45] income results in a history of losses lost crop must be deducted from the $ rather than profits. 490,855.58 value of the lost crop. HN41 These costs include additional lease payments, grain The Wilkinses first planted grain in 1992 and brought this suit to recover for crop damages -elevator costs, and transportation charges. See [**47] International Harvester Co., 507 sustained in 1993 and 1994. Thus, they only S.W.2d at 197. Harvesting and marketing exhad one year to establish a profit history. penses can be liberally estimated. International We have held that HN40 past profits, coupled Harvester Co., 507 S.W.2d at 197. with other facts and circumstances, may establish a lost-profits amount with reasonable cerHere, the Wilkinses neighbor testified about avtainty. See Teletron Energy Mgmt., Inc., 877 erage transportation costs to move grain be-

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

tween his farm and the grain elevator in McCook, Texas, where both the neighbor and the Wilkinses sent their crops. Kenneth Wilkins testified about how the grain-elevator company calculates drying charges and provided the jury with the Wilkinses 1993 and 1994 grainelevator receipts. The Wilkinses leases containing the percentage of profits that the Wilkinses were required to pay their landlord were entered into evidence. Finally, there was some evidence presented to the jury about the seeds actual price and some evidence that Helena may have written off a part of the price. With this evidence, the jury assessed the Wilkinses net lost profits at $ 360,000. We agree with the court of appeals that the jurys damages award was within the range of evidence the Wilkinses presented and that this award is supported with evidence establishing damages with reasonable certainty. 18 S.W.3d at 759. [**48] Thus, we hold that there is some evidence to support the jurys damage award. VI. CONCLUSION We conclude that the Wilkinses delay in submitting their claims to arbitration did not jurisdictionally bar their suit. We also conclude that the trial court did not abuse its discretion in admitting the Wilkinses experts testimony. Finally, we conclude that there is some evidence to support the jurys liability, causation, and damages findings. Accordingly, we affirm the court of appeals judgment. James A. Baker, Justice Dissent by: GREG ABBOTT
Dissent

to conduct a meaningful investigation, and the Board appropriately concluded that the complaint did not qualify for arbitration. Despite the Acts plain requirement that seed complaints be timely submitted to arbitration as a prerequisite to maintaining [**49] a legal action, the Court sidesteps this requirement and permits Wilkins to maintain his suit. In doing so, the Court encourages all seed buyers who wish to circumvent the Acts arbitration requirement to simply delay submitting the complaint to arbitration until it is too late for the Board to investigate. Because the Court ignores the Acts plain language and undermines the Acts purpose by permitting seed purchasers to completely circumvent the Acts arbitration requirement, I dissent. I The Acts purpose is to provide[] for an unbiased third party investigation by the State Seed and Plant Board of the Texas Department of Agriculture of complaints concerning seed performance. HOUSE COMM. ON AGRIC. AND LIVESTOCK, BILL ANALYSIS, Tex. S.B. 64, 71st Leg., R.S. (1989). To achieve this purpose, the Act requires that a seed purchaser who claims to have been damaged by the failure of the [*507] seed to produce or perform as represented by warranty or by the label required to be attached to the seed . . . or as a result of negligence . . . must submit the claim to arbitration before the Board as a prerequisite to the exercise of the purchasers right to maintain a legal action. [**50] TEX. AGRIC. CODE 64.002 (emphasis added). In order for the Board to be able to conduct a meaningful investigation, the Act expressly provides that the arbitration complaint must be submitted within the time necessary to permit effective inspection of the plants under field conditions. Id. 64.006(a). The question the Court must answer today is: When the seed purchaser does not file the arbitration complaint within the time necessary to permit effective inspection of the plants under field conditions (even though he is aware of the problem during that time and conducts his own inspection), and the Board concludes that the complaint

JUSTICE ABBOTT, joined by JUSTICE HECHT and JUSTICE OWEN, dissenting. Although he knew about both the alleged problem with the seed and the Acts requirement that seed complaints be submitted to arbitration, Wilkins delayed submitting his complaint to arbitration until years after he first discovered the problem. Because of this delay, it was too late for the State Seed and Plant Board

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

when any farmer is damaged by the failure of . . . seed to produce or perform as represented by the label . . ., as a prerequisite to his right to maintain a legal action against the dealer from whom such seed was purchased, such farmer shall make a sworn complaint . . . . The First, the Act provides both that the seed purcomplaint shall be filed with the department, chaser must submit the claim to arbitration as and a copy of the complaint shall be served on provided by [Chapter 64] and that the comthe dealer by certified mail, within such time plaint must be filed within the time necessary to as to permit inspection of the crops, plants, or permit effective inspection of the plants under trees by the seed investigation and conciliafield conditions. Id. 64.002, 64.006(a) tion council or its representatives and by the [**51] (emphasis added). According to the dealer from whom the seed was purchased. Code Construction Act, must creates or recognizes a condition precedent. TEX. GOVT FLA. STAT. ANN. 578.26(1)(a) (1989) (emphaCODE 311.016(3). A condition precedent is sis added). an event that must happen or be performed before a right can accrue to enforce an obligaThe Florida and Texas statutes are substantially tion. Centex Corp. v. Dalton, 840 S.W.2d 952, similar -- both provide that the [*508] seed 956 (Tex. 1992). Thus, before a seed purpurchaser or farmer must file a complaint or subchaser may maintain his suit, he must submit mit the claim to arbitration as a prerequisite his claim to arbitration and he must do so within to [the purchasers] right to maintain a legal the time necessary to permit effective inspec[**53] action against the dealer or labeler. tion of the plants under field conditions -- it is Both statutes require the complaint to be filed not enough to submit the claim when no inin a timely manner so that it can be approprispection is possible. Because the Board shall ately investigated and the crops can be inconduct arbitration as provided by [Chapter spected. 64], id. 64.005(b), if the seed purchaser fails It is a generally accepted rule of statutory conto timely submit the claim as directed by Chapter 64, the Board cannot arbitrate and the struction that when the Legislature adopts a foreign statute it also adopts the construction sole purpose of the Act is thwarted. of that statute by the foreign jurisdiction ocSecond, the Legislature expressly indicated curring prior to the Texas enactment. State v. that the Act was based on a similar Florida stat- Moreno, 807 S.W.2d 327, 332 n.5 (Tex.Criute. The bill analysis recognizes that for m.App. 1991); see also City of Garland v. Dalmany years the state of Florida has used a las Morning News, 22 S.W.3d 351, 360 (Tex. method of arbitration with an unbiased third 2000); Tex. Dept of Pub. Safety v. Gilbreath, party investigation and opinion and the Ameri- 842 S.W.2d 408, 412 (Tex. App.--Austin 1992, can Seed Trade Association has [**52] recom- no writ). The Florida Supreme Court conmended to each of its member states that strued Floridas seed act in 1983 in Ferrythey work to pass measures similar to FloriMorse Seed Co. v. Hitchcock, 426 So. 2d 958 das. See HOUSE COMM. ON AGRIC. AND (Fla. 1983). 1 Just as in this case, the farmer in LIVESTOCK, BILL ANALYSIS, Tex. S.B. Hitchcock waited over two years after discov64, 71st ering the problem to bring suit alleging breach of Leg., R.S. (1989). At the time the Texas Seed Ar- warranty and negligence, and made no attempt to comply with the statutory requirebitration Act was enacted, the Florida statute ments. The Florida Supreme Court held that the provided that:
1

does not qualify for arbitration because of the delay, is the purchasers legal action based on the sellers alleged misrepresentations barred? Simple rules of statutory construction require that this question be answered yes.

Floridas 1977 Act, which was at issue in Ferry-Morse, was similar to its 1989 version except that it required the farmer to file 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, *508; 2001 Tex. LEXIS 38, **53

der field conditions. For example, if the problem became apparent early in the season but [*509] the farmer delayed submitting the claim to arbitration until after the heat of the summer, the delay could affect the Boards investigation. Section 64.004 allows the trial The Texas Legislature enacted Chapter 64 in court to consider such a delay; it does not al1989, well after the Florida Supreme Court is- low the court to completely ignore the statutes sued its decision construing Floridas seed timeliness requirements. Moreover, section act. Accordingly, we should presume that the 64.004, by its terms, applies only to a comLegislature intended to adopt Floridas construc- plaint that has been the subject of arbitration tion of its statute, so long as the Florida and under [Chapter 64]. Because Wilkinss comTexas statutes are substantially similar and our plaint was not arbitrated -- and could not statute does not reflect a contrary intent. See have been under the terms of the statute -- secSharifi v. Young Bros., 835 S.W.2d 221, 223 tion 64.004 does not apply. (Tex. App.--Waco 1992, writ denied). As noted, the acts are substantially similar, and neither Construed in this manner, section 64.004 is conthe Texas statute itself nor the available legisla- sistent with the Acts purpose and with the contive history indicates a contrary [**55] inclusion that a purchasers failure to file an artent. bitration complaint within the time necessary to permit inspection during field conditions is a The only notable difference between the Texas bar to suit. But the Court would rather rely on and Florida statutes is the provision in secthis one provision to gut the purpose of the tion 64.004 that: Act. Rather than interpreting this single sentence in a manner entirely inconsistent with the the court may . . . take into account any findings of the board of arbitration with respect to Acts purpose of allowing an independent [**57] third-party investigation, we the failure of any party to cooperate in the arbitration proceedings, including any finding as should interpret it consistently with the Act as a whole. See Tex. Workers Comp. Ins. Fund v. to the effect of delay in filing the arbitration claim or the arbitration boards ability to deter- Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000) (stating that we do not construe statutory mine the facts of the case. language in isolation but in the context of the TEX. AGRIC. CODE 64.004. Both the Court entire statutory scheme). And, when two conand Wilkins contend that Wilkinss delay in structions are possible, we should choose the filing his arbitration complaint does not bar his one most consistent with the Acts purpose over suit because the statute specifically addresses the construction completely at odds with it. this problem by allowing the trial court to take The Courts construction of the Act renders such delays into account. However, because that interpretation allows Wilkins to completely meaningless section 64.006(a)s requirement that the arbitration complaint be submitted circumvent Chapter 64s arbitration requirewithin the time necessary to permit effective inment, it simply cannot be an accurate applicaspection of the plants under field conditions. tion of section 64.004. Relying on the fact that the Act does not expressly state that the Board must conduct the To the contrary, section 64.004 deals with the situation in which the complaint is filed within field inspection, the Court reasons that the Act provides that a complaint must be filed in the time necessary to permit effective inspection under field conditions, but the seed purchas- time to permit an effective inspection of the plants under field conditions, thus permitting ers delay in filing nevertheless affects the investigation. A purchaser could certainly delay the parties to inspect under field conditions and provide their reports to the Board. 47 S.W.3d filing [**56] an arbitration complaint for many months yet still file while the seeds are un- 486, 2001 Tex. LEXIS 38, *20 (citations omitfarmers claims were inextricably bound to the statutes labeling requirements, and that [**54] by failing to comply with the statutory requirements, the farmer was barred from bringing suit for damages. Id. at 961.

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

If Wilkins is correct, plaintiffs could easily circumvent the Act simply by recharacterizing their claims as DTPA claims. This would render the Act wholly ineffective and would undermine the legislative [**60] intent. Cf. Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994) (Claims that a physician or health care provider was negligent may not be recast as DTPA actions to avoid the standards set forth in the Medical Liability and Insurance Improvement Act.). The Acts language is broad -- it applies whenever a seed purchaser claims to have been damaged by the failure of the seed to produce or perform as represented by warranty or by the label required to be attached . . . or as a result of negligence. TEX. AGRIC. CODE 64.002(a). The Business and Commerce Code -- the same code in which the DTPA is found -- defines warranties to include any affirmation of fact or promise made by the seller to the buyer which relates The Courts construction reads section to the goods and becomes part of the basis of the 64.006(a)s timeliness requirement right out of bargain and any description of the goods which is made part of the basis of the barthe Act. To be consistent with [**59] both the Acts language and its purpose, I would hold gain. TEX. BUS. & COM. CODE that Wilkinss failure to submit his claim to ar- 2.313(a)(1),(2). Wilkinss claims for DTPA misrepresentation and unconscionability fall bitration within the requisite time period bars him from maintaining a legal action against within the scope of this definition. Helena. In the jury charge, the DTPA misrepresentation claim defined false, misleading, or deceptive II act or practice [**61] as representing that Cherokee seed had or would have characterisWilkins argues that, regardless of whether the Act bars certain claims that [*510] have not tics that it did not have or representing that Cherokee seed was of a particular quality if been arbitrated, the jurys verdict can be sustained on the basis of the DTPA unconscionabil- it was of another. These representations fall within the definition of warranty, and, although ity and misrepresentation causes of action, which he contends are not subject to the Acts ar- couched as a DTPA misrepresentation claim, bitration requirement. Wilkins obtained favorthe underlying nature of the complaint is that the able jury findings on his claims for breach of seeds did not produce or perform as reprewarranty, DTPA unconscionability, and sented. See Sorokolit, 889 S.W.2d at 242 (holdDTPA oral misrepresentations. Wilkins argues ing that the underlying nature of the claim, that, even if the breach of warranty claim is not its label, determines whether section barred by his failure to arbitrate, the Act does 12.01(a) of the Medical Liability and Insurance

ted). But this reasoning makes no sense. The timing requirement must have been intended to allow someone to conduct [**58] a field inspection. According to the Court, that someone is simply the parties. But surely the Acts timeliness requirement was not included to allow the farmer to conduct a field inspection, since the farmer has access to his fields and can conduct an inspection at any time. Accordingly, the requirement must have been intended to permit the Board or the seed seller to conduct an inspection. Since the Acts purpose is to allow a third party investigation and the Board employs its own field inspectors, the only conclusion is that the Legislature intended to permit the Board to conduct an inspection. But under the Courts interpretation, there would be no problem even if no one conducted a field inspection and the farmer waited until well after the crops had been harvested to file the arbitration complaint so that no field inspection could be performed. Or, the farmer could conduct a field inspection but then wait until after field conditions to file the arbitration complaint so that the only field inspection the Board could consider would be the farmers.

not bar his DTPA unconscionability and misrepresentation claims because the statute requires only claims based on the label, warranty, or negligence to be submitted to arbitration, and his DTPA claims are not based on the label, warranty, or negligence.

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

Improvement Act prevents suit for violation of the DTPA). Wilkinss DTPA unconscionability claims are also predicated on Helenas representations concerning the Cherokee seed. The evidence supporting Wilkinss DTPA misrepresentation and unconscionability claims is the same evidence supporting his breach of warranty claims. Because all of Wilkinss claims are so significantly factually intertwined, they should be arbitrated together. Cf. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex. 1992) (requiring arbitration of factually intertwined contract and misrepresentation claims in contractual [**62] arbitration context). Accordingly, Wilkinss DTPA claims are included within the Acts arbitration requirement. III Wilkins argued in the trial court that construing the Act to bar his legal action would violate the Open Courts provision of the Texas Constitution. SeeTEX. CONST. art. I, 13. We should, if possible, interpret statutes in a manner that avoids constitutional infirmities. Owens Corning v. Carter, 997 S.W.2d 560, 577 (Tex. 1999). [*511] The Attorney General has concluded, and I agree, that Chapter 64s arbitration requirements do not on their face violate the Open Courts provision of the Texas Constitution. Op. Tex. Atty Gen. No. DM-3 (1991). As noted in that decision, Chapter 64 does not purport to abolish the right of seed performance disputants to obtain redress in court. Id. The arbitration is non-binding, and seed purchasers are free to pursue their claims in court after the arbitration. Moreover, Chapter 64s arbitration requirements are certainly not unreasonable or arbitrary when balanced against the purpose and basis of the statute. Id.; see Carter, 997 S.W.2d at 573; Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983). [**63] The Attorney General did caution, however, that the Act could raise Open Courts questions as applied to some cases. Op. Tex. Atty

Gen. No. DM-3 (1991). In particular, the Attorney General pointed out that the Open Courts provision could limit the application of section 64.006(a)s requirement that the arbitration complaint be filed in time to permit inspection of the plants under field conditions. Id. I agree that this requirement might arguably violate the Open Courts provision as applied to cases in which the Acts complaint-filing time period has expired before the seed purchaser has a reasonable opportunity to discover the problem. But where, as here, the seed purchaser discovers the problem while the seeds are under field conditions (and conducts his own independent investigation of the crops in the field), is aware of the arbitration requirement, and has ample opportunity to file his complaint in a timely manner but simply fails to do so, the Open Courts provision is satisfied. ***** Wilkins knew of the potential problem with the Cherokee seed within plenty of time to file a complaint with the Board during the requisite time period. Although he allowed some experts [**64] to investigate his crops under field conditions, he failed to file a complaint with the Board to allow the neutral third-party investigation required by the Act. Because Wilkins failed to submit his complaint within the requisite time period, the Board properly concluded that the complaint did not qualify for arbitration under the Acts plain language. And because arbitration is a prerequisite to Wilkinss right to maintain a legal action for his claims that he has been damaged by the failure of the seed to produce or perform as represented, Wilkinss claims are barred. The Court nevertheless decides that they are not. Because that decision contradicts the Acts plain language and undermines its purpose, I dissent. GREG ABBOTT JUSTICE April 26, 2001

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Document(1)
1. TJFA, L.P. v. Tex. Commn on Envtl. Quality & BFI Waste Sys. of N. Am., Inc., 368 S.W.3d 727 Client/matter: Adelman

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Positive As of: March 1, 2013 1:29 PM EST

TJFA, L.P. v. Tex. Commn 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 County, 53rd Judicial District (Texas), which dismissed its suit seeking judicial review of a decision from appellee Texas Commission on Environmental Quality that granted appellee waste companys application to expand a landfill near the owners property and required the owner to pay half of the transcript fees for the administrative hearing. Overview The owner timely filed suit but did not execute service of citation until after the 30-day deadline specified in Tex. Health & Safety Code Ann. 361.321(c) (2010). The district court dismissed the suit by granting the Commissions plea to the jurisdiction and, alternatively, dismissed the suit for failure to comply with a mandatory statutory directive. The court concluded that execution of service was not a statutory prerequisite to suit under 361.321(c) and that untimely service therefore was not a jurisdictional defect. In the context of suits against the state, a statutory prerequisite to suit was a step or condition that had to be satisfied before the suit could be filed. Case law construing Tex. Govt Code Ann. 311.034 (Supp. 2011) explicitly distinguished between prerequisites to suit and requirements that could be accomplished only after a suit was filed, such as service of citation. Because 361.321(c) contained the mandatory term must and provided an explicit deadline for execution of service, the court agreed with the trial courts alternative conclusion that the owner had failed to comply with a mandatory statutory requirement. Outcome

TJFA, L.P., Appellant v. Texas Commission on Environmental Quality and BFI Waste Systems of North America, Inc., Appellees Subsequent History: Petition for review denied by TJFA, L.P. v. Tex. Commn on Envtl. Quality, 2012 Tex. LEXIS 826 (Tex., Sept. 21, 2012) Prior History: [**1] FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-09-004062, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING. Northeast Neighbors Coalition v. Tex. Commn on Envtl. Quality, 2011 Tex. App. LEXIS 5948 (Tex. App. Austin, July 29, 2011) Disposition: Modified and, as Modified, Affirmed.
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 to comply, trial court, file suit, diligence, austin, prompt, statutory prerequisite, legislative intent, subject-matter
Case Summary

Procedural Posture Appellant property owner sought review of a judgment from the District Court of Travis

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

The court affirmed the district courts judgment of dismissal as modified in accordance with the courts conclusion that the service deadline was not jurisdictional.
LexisNexis Headnotes Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Motions to Dismiss

ered. A court may also consider the object sought to be attained by enacting the statute and the consequences of a particular construction. Tex. Govt Code Ann. 311.023 (2005).
Governments > State & Territorial Governments > Claims By & Against

HN6 The legislature has expressly limited the circumstances in which a statute should be construed as a waiver of sovereign immunity. HN1 A party to a case may assert that a trial court is without jurisdiction to consider the case Tex. Govt Code Ann. 311.034 (Supp. 2011). Moreover, statutory prerequisites to a suit, inby filing a plea to the jurisdiction. cluding the provision of notice, are jurisdicCivil Procedure > ... > Responses > Defenses, Demur- tional requirements in all suits against a governmental entity. rers & Objections > Motions to Dismiss
Civil Procedure > Appeals > Appellate Jurisdiction > Interlocutory Orders Governments > State & Territorial Governments > Claims By & Against Governments > State & Territorial Governments > Claims By & Against

HN2 In cases in which a governmental unit has filed a plea to the jurisdiction, a party to the case may appeal the grant or the denial of the plea. Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(8) (2008 & Supp. 2011).
Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Motions to Dismiss Civil Procedure > Appeals > Standards of Review > De Novo Review

HN3 On appeal, a trial courts grant or denial of a plea to the jurisdiction is reviewed de novo.
Civil Procedure > Appeals > Standards of Review > De Novo Review Governments > Legislation > Interpretation

HN7 In the context of suits against the state, a statutory prerequisite to suit is a step or condition that must be satisfied before the suit against the state can be filed. When construing Tex. Govt Code Ann. 311.034 (Supp. 2011), the Texas Supreme Court has explicitly distinguished between prerequisites to suit and requirements that may only be accomplished after a suit is filed. Section 311.034 does not apply to notice requirements that can be satisfied only after suit is filed.
Civil Procedure > ... > Pleadings > Signature > General Overview Environmental Law > Administrative Proceedings & Litigation > Jurisdiction

HN4 Statutory construction is a legal question that is reviewed de novo.

Governments > Legislation > Interpretation

HN8 By the terms of Tex. Health & Safety Code Ann. 361.321(c) (2010), the 30-day deadline for executing service of process begins after the suit has been filed.
Governments > Legislation > Interpretation

HN5 In construing a statute, a court must ascertain the legislatures intent in enacting the statute. In making this determination, courts should look to the plain meaning of the words used in the statute. A court presumes that every word was deliberately chosen and that excluded words were left out on purpose. When determining legislative intent, the entire act, not isolated portions, must be consid-

HN9 When construing a statute, courts must be mindful that there is a presumption against finding a statutory provision to be jurisdictional. Furthermore, that presumption may only be overcome by clear legislative intent to the contrary.
Civil Procedure > ... > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview

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

HN10 Filing a petition endows a trial court with subject-matter jurisdiction provided that the case involves a dispute that the trial court has authority to adjudicate. In other words, the authority of the court to act in the matter is properly invoked by filing a petition alleging a claim falling under the jurisdiction of the court. If the petition does not address a dispute falling under the courts jurisdictional umbrella, then the court does not have subject-matter jurisdiction, and the case is subject to dismissal by a plea to the jurisdiction.
Civil Procedure > ... > In Rem & Personal Jurisdiction > In Personam Actions > Consent Civil Procedure > ... > Service of Process > Waiver of Process & Service > General Overview

ties. One factor that may weigh in favor of construing a statute that requires timely action as directory is if the statute does not specify consequences for failing to act by the statutory deadline. Stated differently, if a provision requires that an act be performed within a certain time without any words restraining the acts performance after that time, the timing provision is usually directory. Accordingly, when a statute uses the word must to describe a requirement and also includes a penalty for noncompliance, the word must is given a mandatory meaning.
Governments > Legislation > Interpretation

HN11 A defendant may generally waive a defect in service if he chooses.

Civil Procedure > ... > Pleadings > Signature > General Overview Environmental Law > Administrative Proceedings & Litigation > Jurisdiction

HN14 The absence of a penalty in a statute for failing to comply with a statutory requirement does not automatically compel a conclusion that a statute stating that an act must be accomplished is not mandatory. Instead, when the statute is silent regarding the penalty for noncompliance, courts look to the statutes purpose for guidance.
Civil Procedure > ... > Pleadings > Signature > General Overview

HN12 Execution of service is not a statutory prerequisite to suit under Tex. Health & Safety Code Ann. 361.321(c) (2010). A failure to timely execute should instead be viewed as similar to a more traditional failure to comply with a statute of limitations. In other words, the defendant may argue that the case should be dismissed for failing to timely execute service, but untimely service is not a jurisdictional defect.
Governments > Legislation > Interpretation

HN13 For determinations regarding whether a statutory requirement is directory or mandatory, there is no absolute test that courts may apply. In general, statutes that use words like Governments > Legislation > Interpretation Governments > State & Territorial Governshall or must are construed as mandaments > Claims By & Against tory, but courts have, in certain circumstances, construed those terms as being directory HN16 Courts are required to narrowly construe rather than mandatory. Statutory provisions statutory waivers of sovereign immunity. that are included for the purpose of promoting the proper, orderly and prompt conduct of Civil Procedure > ... > Pleadings > Signabusiness are not generally construed as mandature > General Overview tory, particularly when the failure to comply Environmental Law > Administrative Proceedings & Litigation > Jurisdiction will not prejudice the rights of the interested par-

HN15 When the legislature has not provided specific deadlines for service, courts have determined whether service of citation was properly performed in cases in which service was executed after the deadline for filing suit by considering whether the person filing suit exercised due diligence in executing service. By providing an explicit deadline, the legislature indicates its intention to foreclose the possibility of excusing delays between filing and executing service due to diligent efforts at service undertaken by plaintiffs.

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 executing service of process is a mandatory statutory requirement. Judges: Before Chief Justice Jones, Justices Puryear, Pemberton, Henson, Rose and Goodwin; Concurring and Dissenting Opinion by Justice Henson; Concurring Opinion by Justice Rose.

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

Shortly after the Commission made its determination, TJFA filed a suit for judicial review of the Commissions decision. SeeTex. Health & Safety Code Ann. 361.321(c) (explaining that to appeal administrative determination, affected party must file petition within 30 days Opinion by: David Puryear of Commissions decision). Because it was contesting the Commissions determination, TJFA Opinion did not pay its portion of the transcript fees, [**3] and BFI paid the full amount. On the [*729] TJFA, L.P. (TJFA) sought judicial day that it filed suit, TJFA gave the Commisreview of a decision made by the Texas Commission on Environmental Quality (the Com- sion a copy of the petition, but TJFA did not execute service of citation on the Commission unmission) that granted an application to extil 41 days after it filed suit. Under the pand a landfill and that required TJFA to pay half of the transcript fees associated with the governing statutory provision, [s]ervice of citation must be accomplished not later than the hearing addressing the application. Although 30th day after the date on which the petition is TJFA filed its suit within the statutory deadline, it did not execute service of citation until af- filed. Id. ter the deadline listed in the health and safety code. SeeTex. Health & Safety Code Ann. After being served, the Commission filed a joint plea to the jurisdiction and motion to dis361.321(c) (West 2010). For that reason, the miss. In the filing, the Commission asserted Commission filed a joint plea to the jurisdiction and motion to dismiss. After a hearing, the that because TJFA did not comply with the 30day deadline for service of citation, the disdistrict court dismissed the suit by granting trict court did not have subject-matter jurisdicthe plea and, alternatively, dismissed the suit tion over the case. Alternatively, the for failure to comply with a mandatory statutory directive. The district court also ordered Commission contended that the suit should be dismissed because TJFA failed to comply with a TJFA to pay the transcript fees imposed statutory requirement. After the Commission [**2] by the Commission. We will affirm en banc the district courts dismissal of the suit for requested that the case be dismissed, BFI intervened in the case and filed a counterclaim failure to comply with a mandatory statutory provision. SeeTex. R. App. P. 41.2 (allowing ap- against TJFA for the transcript fees that the Commission ordered TJFA to pay. pellate court to decide to consider case en banc). In response to the Commissions filing, the disBACKGROUND BFI Waste Systems of North America, Inc. (BFI) sought to expand its municipal-solidwaste-landfill permit for a landfill on the east side of Austin, Texas. TJFA owned land near the landfill and opposed the expansion suggested by BFI. After a hearing, the Commission approved the proposed expansion and issued an order granting the application for trict court scheduled a hearing. After the hearing, the district court dismissed the suit. In particular, the district court found that the 30-day deadline for executing [**4] service of citation was a jurisdictional prerequisite to suit. Alternatively, the district court determined that the 30-day statutory deadline was mandatory, not directory. Further, the district court [*730] determined that TJFA had not complied with the deadline because the Commission was not

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

served with citation until 41 days after the suit was filed. Accordingly, the district court dismissed TJFAs suit. In addition, the district court ordered TJFA to reimburse BFI for half of the transcript fees from the administrative hearing ($6,564.42).

sought to be attained by enacting the statute and the consequences of a particular construction. [**6] Tex. Govt Code Ann. 311.023 (West 2005); see City of Austin v. Southwestern Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002).

After the district court made its ruling, TJFA ap- DISCUSSION pealed the district courts dismissal. On appeal, TJFA challenges the district courts alternative bases for dismissing the suit. STANDARD OF REVIEW First, TJFA contends that the district court HN1 A party to a case may assert that a trial erred when it determined that the service-ofcourt is without jurisdiction to consider the case citation requirement found in section 361.321 of by filing a plea to the jurisdiction. Houston the health and safety code is a jurisdictional Mun. Employees Pension Sys. v. Ferrell, 248 prerequisite to suit. Accordingly, TJFA argues S.W.3d 151, 156 (Tex. 2007). HN2 In cases in that its failure to execute service within 30 days which a governmental unit has filed a plea to did not deprive the district court of jurisdicthe jurisdiction, a party to the case may appeal tion and that the district court therefore erred by the grant or the denial of the plea. SeeTex. granting the Commissions plea to the jurisdicCiv. Prac. & Rem. Code Ann. 51.014(a)(8) tion. Second, TJFA attacks the district (West 2008 & Supp. 2011); see also id. courts alternative determination that the case 101.001(3) (West 2011 & Supp. 2011) (defin- be dismissed because the service requirement is ing governmental unit). HN3 On appeal, mandatory. Instead, TJFA insists that the prowe review de novo the [**5] trial courts grant vision is merely directory and that its failure to or denial of the plea. Ferrell, 248 S.W.3d at comply with the requirement should be ex156. cused because it diligently attempted to execute service. For these reasons, TJFA argues Moreover, the issues asserted by TJFA involve that the district court erred by dismissing the suit HN4 statutory construction, which is a legal and by ordering TJFA to pay half of the tranquestion that we review de novo. See MCI Sales script fees. & Serv., Inc. v. Hinton, 329 S.W.3d 475, 501 n.30 (Tex. 2010); Bragg v. Edwards Aquifer Dismissal for Lack of Subject Matter JurisdicAuth., 71 S.W.3d 729, 734 (Tex. 2002); USA tion Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex. App.Austin 2004, As described above, TJFAs [**7] first issue pet. denied). HN5 In construing a statute, we challenges the district courts grant of [*731] must ascertain the legislatures intent in enact- the Commissions plea to the jurisdiction and ing the statute. Fleming Foods of Tex. v. Rydismissal of the case for lack of subject-matter lander, 6 S.W.3d 278, 284 (Tex. 1999). In mak- jurisdiction. When supporting the district ing this determination, courts should look to courts jurisdictional determination, the Comthe plain meaning of the words used in the stat- mission notes that HN6 the legislature has exute. See Firemans Fund County Mut. Ins. pressly limited the circumstances in which a Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex. 2000). statute should be construed as a waiver of sovWe presume that every word was deliberately ereign immunity. SeeTex. Govt Code Ann. chosen and that excluded words were left out on 311.034 (West Supp. 2011). Moreover, the Commission also notes that the legislature has depurpose. USA Waste Servs., 150 S.W.3d at 494. When determining legislative intent, the en- termined that [s]tatutory prerequisites to a suit, including the provision of notice, are jurisdictire act, not isolated portions, must be considered. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. tional requirements in all suits against a governmental entity. Id. In light of that determina1998). We may also consider the object

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

tion, the Commission argues that timely execution of service of citation is a statutory prerequisite for waiving sovereign immunity under subsection 361.321(c) of the health and safety code. SeeTex. Health & Safety Code Ann. 361.321(c). Accordingly, the Commission contends that because TJFA failed to execute service within the statutory deadline, the district court did not have subject-matter jurisdiction over the claim. For the reasons that follow, we disagree with the Commission. This Court has [**8] previously explained what qualifies as a statutory prerequisite to suit. See Scott v. Presidio Indep. Sch. Dist., 266 S.W.3d 531, 535, 537 (Tex. App.Austin 2008) (op. on rehg) (concluding that requirement that all parties agree to allow suit to occur in Travis County before suit is filed is statutory prerequisite to suit and, therefore, jurisdictional), revd on other grounds, 309 S.W.3d 927 (Tex. 2010) (reversing appellate courts determination that Commissioner of Education was required to give consent to suit being filed in Travis County). HN7 In the context of suits against the State, this Court reasoned that a statutory prerequisite to suit is a step or condition that must be satisfied before the suit against the state can be filed. Id. at 535. That construction is consistent with those of other courts of appeals. See County of Bexar v. Bruton, 256 S.W.3d 345, 348 (Tex. App.San Antonio 2008, no pet.) (stating that common usage of term [p]rerequisite to suit . . . implies a requirement to be fulfilled before suit is filed); Dallas County v. Hughes, 189 S.W.3d 886, 888 (Tex. App.Dallas 2006, pet. denied) (observing that ordinary meaning of [a] prerequisite is something that [**9] is required beforehand). In fact, when construing section 311.034 of the government code, the supreme court explicitly distinguished between prerequisites to suit and requirements that may only be accomplished after a suit is filed. See Roccaforte v. Jefferson County, 341 S.W.3d 919, 925 (Tex. 2011). In particular, the su-

preme court determined that section 311.034 does not apply to notice requirements that can be satisfied only after suit is filed. See id.; see also Ballesteros v. Nueces County, 286 S.W.3d 566, 569-70 (Tex. App.Corpus Christi 2009, pet. denied) (holding that compliance with post-suit-notice provision is not jurisdictional); Dallas County v. Coskey, 247 S.W.3d 753, 754-56 (Tex. App.Dallas 2008, pet. denied) (concluding that requirement that notice be given thirty days after suit was filed is not statutory prerequisite and, therefore, not jurisdictional). HN8 By the very terms of subsection 361.321(c), the 30-day deadline for executing service of process begins after the suit has been filed. SeeTex. Health & Safety Code Ann. 361.321(c). HN9 When construing a statute, courts must be mindful that there is a presumption against finding a statutory provision to be jurisdictional. [**10] City of Desoto v. White, 288 S.W.3d 389, 394 (Tex. 2009); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75-76 (Tex. 2000) (overruling line of cases holding that [*732] statutory provisions are mandatory and exclusive and endorsing modern trend of reducing vulnerability of final judgments by not characterizing statutory requirements as jurisdictional). Furthermore, that presumption may only be overcome by clear legislative intent to the contrary. City of Desoto, 288 S.W.3d at 394. Nothing in the language of subsection 361.321(c) indicates an intention by the legislature to make service a jurisdictional requirement, seeTex. Health & Safety Code Ann. 361.321(c), and as discussed above, section 311.034 of the government code only makes prerequisites to suit jurisdictional, seeTex. Govt Code Ann. 311.034. See also State v. K.E.W., 315 S.W.3d 16, 21 (Tex. 2010) (stating that when construing statutes, courts rely on plain meaning of statute unless different meaning is supplied by legislature or is apparent from context or unless construction using plain meaning leads to absurd results).1

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 Commn,

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

In addition, a determination that service is not a jurisdictional requirement is consistent with the manner in which a trial courts jurisdiction is invoked. Under governing case law, HN10 filing a petition endows a trial court with subject-matter jurisdiction provided that the case involves a dispute that the trial court has authority to adjudicate. Hughes v. Atlantic Ref. Co., 424 S.W.2d 622, 625 (Tex. 1968); see In re Alley, 1 S.W.3d 268, 271 (Tex. App. Texarkana 1999, orig. proceeding) (explaining [*733] that general rule is that jurisdiction attaches at the time of the filing of a proceeding); Gaynier v. Ginsberg, 763 S.W.2d 461, 463 (Tex. App.Dallas 1988, no writ) (stating that jurisdiction of court to hear case is established when petition is filed alleging subject matter over which [**14] court has jurisdiction). In other words, the authority of the court to act in the matter is properly invoked by filing a petition alleging a claim falling under the jurisdiction of the court. If the petition does not address a dispute falling under the courts jurisdictional umbrella, then the court does not have subject-matter jurisdiction, and the case is subject to dismissal by a plea to the jurisdiction. See State v. Holland, 221

S.W.3d 639, 642 (Tex. 2007) (explaining that when plea challenges jurisdiction of court, court reviews petition to determine whether facts pleaded demonstrate that jurisdiction exists). Moreover, unlike subject-matter jurisdiction, HN11 a defendant may generally waive a defect in service if he chooses. See Werner v. Colwell, 909 S.W.2d 866, 869-70 (Tex. 1995); see alsoTex. R. Civ. P. 121 (stating that answer constitutes an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him). In light of the preceding, we conclude that the district court erred when it determined that compliance with the deadline for service of citation was a jurisdictional prerequisite to suit.2 Given that the legislature chose [**15] to create two separate deadlines for filing suit and for executing service and given that the service deadline occurs after a suit has been filed, we believe that HN12 execution of service is not a statutory prerequisite to suit and that the failure to timely execute should instead be viewed as similar to a more traditional failure to comply with a statute of limitations. In other words, the defendant may argue that the case should be dismissed for failing to timely ex-

26 S.W.3d 684, 688 (Tex. App.Austin 2000), affd on other grounds, 70 S.W.3d 809 (Tex. 2002). In its brief, the Commission asserts that we should disregard our prior conclusion because that case was decided before the legislature enacted a provision stating that statutory prerequisites to suit were jurisdictional. SeeTex. Govt Code Ann. 311.034(c) (West Supp. 2011). In addition, the Commission points to various portions of the supreme courts opinion affirming our judgment in which the court stated that subsection 361.321(c) requires service of citation when review is sought in district court, Texas Natural Res. Commn v. Sierra Club, 70 S.W.3d 809, 813-14 (Tex. 2002) (Sierra Club II), and in which it characterized the filing and citation requirements in subsection 361.321(c) as judicial-review prerequisites, id. at 812. Moreover, when summarizing our opinion, the supreme court stated that this Court concluded that the failure to meet the service-of-citation statutory prerequisites is not a defect that affects the courts [**12] subject-matter jurisdiction. Id. at 811. In addition to highlighting the supreme courts language describing the requirements in subsection 361.321(c), the Commission also asserts that the legislature was aware of the supreme courts characterization of the requirements in subsection 361.321(c) and then chose to enact a statute that made all statutory prerequisites jurisdictional in nature. Accordingly, the Commission contends that the legal landscape underpinning our conclusion in Sierra Club has been altered enough to render that holding inapposite to the current case. Although section 311.034 of the government code provision was not in effect at the time we made our decision in Sierra Club, we believe our conclusion in that case warrants mentioning in the current case. Moreover, although the supreme court may have characterized the service-of-citation requirements as prerequisites, the supreme court made no determination regarding whether those requirements were jurisdictional in nature. Instead, the supreme court concluded that the requirements were met in Sierra Club II and, therefore, did not reach the jurisdictional issue addressed by this Court. Id. at 814-15. Accordingly, [**13] the supreme court made no binding determination regarding whether the failure to comply with the service-of-citation requirements in subsection 361.321(c) deprives a trial court of jurisdiction, and its description of the requirements in subsection 361.321(c) is dicta. See Travelers 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 courts jurisdictional determination, the Commission refers to a prior opinion by this Court. See Pacific Employers Ins. Co. v. Twelve Oaks Med. Ctr., No. 03-08-00059-CV, 2010 Tex. App. LEXIS 2771 (Tex. App.Austin Apr. 16, 2010, no pet.) (mem. op.). In that case, this Court determined that the trial court erred by failing to grant Pacific Employers Insurance Companys plea to the jurisdiction, which asserted that Twelve Oaks Medical Center failed to exercise due diligence in executing service. 2010 Tex. App. LEXIS 2771, [WL] at *3. To the extent that Pacific Employers suggests that service of citation [**16] is a jurisdictional requirement to suit, we reject that determination.

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

ecute service, but untimely service is not a jurisdictional defect. Accordingly, we sustain TJFAs first issue on appeal. Dismissal for Failure to Comply with Service Requirement As mentioned above, TJFA also challenges the district courts alternative, non-jurisdictional basis for dismissing the suit. In particular, TJFA asserts that the district court erred by concluding that the statutory deadline listed in subsection 361.321(c) is a mandatory provision.3 To [*734] the contrary, TJFA insists that the deadline is merely a directory provision. In other words, TJFA argues that although the statute says that service of citation must be accomplished not later than the 30th day after the date on which the petition is filed, seeTex. Health & Safety Code Ann. 361.321(c), the provision merely directs, but does not mandate, performance within the specified time period. Moreover, TJFA asserts that although it did not comply with the 30-day deadline for executing service of citation, see id., it did exercise due diligence in attempting to execute service of citation. Accordingly, TJFA insists that the date that service was executed relates back to the date that the suit was filed. See Police Civ. Serv. Commn v. Gutierrez, 182 S.W.3d 430, 432 (Tex. App.Austin 2005, no pet.) [**17] (stating that if plaintiff fails to execute service of citation until after limitations period expires, date of service relates back to date of filing provided that plaintiff exercised due diligence in effecting service). HN13 For determinations regarding whether a statutory requirement is directory or mandatory, there is no absolute [**18] test that courts may apply. Chisholm v. Bewley Mills, 155 Tex. 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
3

945; Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); see alsoTex. Govt Code Ann. 311.016 (West 2005) (explaining that when construing statutes, courts should construe word must as creating or recognizing condition precedent), but courts have, in certain circumstances, construed those terms as being directory rather than mandatory, Texas Mut. Ins. Co. v. Vista Cmty. Med. Ctr., L.L.P., 275 S.W.3d 538, 552 (Tex. App.Austin 2008, no pet.); see Chisholm, 287 S.W.2d at 945. Statutory provisions that are included for the purpose of promoting the proper, orderly and prompt conduct of business are not generally construed as mandatory, Chisholm, 287 S.W.2d at 945, particularly when the failure to comply will not prejudice the rights of the interested parties, see Texas Dept of Pub. Safety v. Dear, 999 S.W.2d 148, 152 (Tex. App. Austin 1999, no pet.) (quoting State v. Fox, 133 S.W.2d 987, 990 (Tex. Civ. App.Austin 1939, writ refd)). One factor that may weigh in favor of construing a [**19] statute that requires timely action as directory is if the statute does not specify consequences for failing to act by the statutory deadline. Chisholm, 287 S.W.2d at 945. Stated differently, [i]f a provision requires that an act be performed within a certain time without any words restraining the acts performance after that time, the timing provision is usually directory. Wilkins, 47 S.W.3d at 495; see also Dear, 999 S.W.2d at 152 (explaining that if provision is directory and act is performed but not in time or manner indicated, act will be deemed sufficient provided that act accomplishes substantial purpose of statute). Accordingly, when a statute uses the word must to describe a requirement and also includes a penalty for noncompliance, [t]he word must is given a mandatory meaning. Wilkins, 47 S.W.3d at 493. However, HN14 the absence of a penalty in the statute for failing to comply with a statutory requirement does not

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

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

automatically compel a conclusion that a statute stating that an act must be accomplished is not mandatory. See Edwards Aquifer Auth. v. Chemical Lime, Ltd., 291 S.W.3d 392, 404 (Tex. 2009). Instead, [w]hen the statute is silent regarding the penalty for [**20] noncompliance, courts look to the statutes purpose for guidance. Id. (quoting Hines v. Hash, 843 S.W.2d 464, 468 (Tex. 1992)); see Chisholm, 287 S.W.2d at 945 (stating that when determining whether provision is [*735] mandatory or directory, courts should consider the entire act, its nature and object, and consequences of alternative constructions); Vista Cmty. Med. Ctr., L.L.P., 275 S.W.3d at 552 (same).

prejudice the rights of the Commission because it received actual notice of the lawsuit on the day that it was filed and because service of citation was accomplished within a few days of the deadline.4 In its final argument, TJFA insists that a conclusion that the 30-day deadline is mandatory would actually frustrate the purpose of the statute because the statutory provision exists to allow judicial review appeals of administrative agency determinations. For the reasons that follow, we disagree with TJFA. Although this is not dispositive, [**22] we note that the language of the statute at issue is written with mandatory language. In particular, the statute specifies that service of citation must be accomplished not less than the 30th day after the date on which the petition is filed. Tex. Health & Safety Code Ann. 361.321(c). Moreover, unlike other statutes in which the legislature has specified a deadline for filing a petition but chosen not to specify a service deadline, see, e.g., Tex. Loc. Govt Code Ann. 143.015(a) (West 2008) (specifying deadline for filing suit but providing no deadline for service), the legislatures decision to provide an explicit deadline must be afforded some significance, seeTex. Health & Safety Code Ann. 361.321(c). HN15 When the legislature has not provided specific deadlines for service, courts have determined whether service of citation was properly performed in cases in which service was executed after the deadline for filing suit by considering whether the person filing suit exercised due diligence in executing service. See Gutierrez, 182 S.W.3d at 432-33. By providing an explicit deadline, the legislature has indicated its intention to foreclose the possibility of excusing delays between [**23] filing and executing service due to diligent efforts at service undertaken by plaintiffs.5

With the preceding in mind, we turn to the arguments made by TJFA. TJFA asserts that the 30-day deadline is directory for five reasons. First, TJFA contends that the provision is directory because it does not bear upon the substance of the judicial review appeal at all and instead serves only to ensure that the [Commission] receives prompt notice that the case has been initiated. Second, TFJA argues that the deadline is designed to guarantee that the case is diligently prosecuted and, therefore, simply relates to the proper, orderly and prompt conduct of business. See Chisholm, 287 S.W.2d at 945. Third, TJFA notes that the statutory provision has no explicit penalty for failing to comply with the deadline and does not expressly prohibit service of citation after the deadline, [**21] see Bruton, 256 S.W.3d at 349 (noting that statute requiring notice after suit was filed contained provision authorizing dismissal of appeal if notice was not timely made and if party files motion to dismiss), and argues that if the legislature had intended the service deadline to be a mandatory requirement, it could have specified that failing to comply will result in dismissal as it has in other statutory provisions, see, e.g., Tex. Loc. Govt Code Ann. 89.0041 (West 2008). Fourth, TJFA argues More importantly, the legislature chose to inthat the lack of service within 30 days did not clude the service-of-citation deadline [*736] in
4 5

In its judgment, the district court found that the Commission was not prejudiced by the delay in service.

In its second issue, TJFA also argues that even if the statutory deadline at issue is mandatory, it still complied with the purpose of the statutory provision, which TJFA argues is to ensure the prompt provision of notice to the Commission in order to allow for diligent prosecution of the case. Moreover, TJFA asserts that unlike filing and limitations deadlines, which TJFA concedes must practically by necessity be construed strictly, compliance with service is measured by whether the plaintiff acted with

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

the same provision explicitly requiring that a petition for judicial review of the Commissions determination be filed within 30 days of the Commissions decision. See id. Given the fact that [**26] the failure to timely file a petition for judicial review within 30 days of the Commissions decision entirely deprives a trial court of jurisdiction to consider an appeal of the Commissions decision, see Texas Commn on Envtl. Quality v. Kelsoe, 286 S.W.3d 91, 96-98 (Tex. App.Austin 2009, pet. denied), the legislatures decision to pair both filing deadlines in the same subsection is indicative of the importance that the legislature placed on the service deadline.

ings). The governing statute provides no option for extending the deadline or for excusing a failure to comply with the deadline and [*737] establishes no procedure for handling suits that do not comply with the deadline. See Chemical Lime, 291 S.W.3d at 404. The legislatures decision to not include a provision allowing a party to explain why compliance with the deadline was not achieved is instructive. This seems particularly true in this case in light of the fact that in the very next provision, the legislature afforded parties the ability to explain why their suit should not be dismissed for failure to pursue the claim with reasonable diligence. SeeTex. Health & Safety Code Ann. 361.321(d) (West 2010) (stating that if govAlthough TJFA correctly points out that the ernmental entity files motion to dismiss for failhealth and safety code provision does not specify ure to prosecute claim within one year after peany explicit penalty for failing to execute sertition is filed, court will dismiss suit unless vice within the 30-day deadline, the statute does plaintiff can show good and sufficient cause not seem to contemplate judicial review of for the delay). In fact, the only consequence that suits that do not comply with the deadline. See can be gleaned from the statute is that a suit Wilkins, 47 S.W.3d at 495 (concluding that filed by a party who did not comply with the statute requiring filing of sworn complaint deadline is subject to dismissal by a trial court. within time to allow for effective inspection was See id. at 404 (explaining that although statnot mandatory because provision did not exute was silent regarding noncompliance pressly require dismissal for failure to comply [**28] with application deadline, penalty conbut also because statute explicitly contemplated templated by statute was that late applicathat delay in filing may occur but case may protions will not be considered). ceed; in particular, statute said that Board may Finally, although TJFA correctly points out that make findings regarding delay in filing and that trial court may consider those [**27] find- the 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 acknowledges that it did not execute service of citation until after the 30-day deadline, it argues that its failure to comply should be excused because it acted with due diligence in its attempts to serve the Commission. Specifically, TJFA asserts that it provided the Commission with a copy of its petition on the day that it filed the petition with the district court. Moreover, it argues that the reason service of citation was not provided earlier was due to its mistaken belief [**24] that electronically filing a petition with the district court also effected service of citation and that once it discovered its mistake, it promptly executed service of citation. Accordingly, TJFA urges that the date service was executed should relate back to the date of filing. See Police Civ. Serv. Commn v. Gutierrez, 182 S.W.3d 430, 432-33 (Tex. App.Austin 2005, no pet.). We note that courts consider diligent efforts when determining if a suit may be pursued even though the defendant was not served until after the deadline for filing suit and that courts will excuse a failure to serve before the passage of the deadline if the plaintiff is actively trying to serve the defendant but is having difficulty locating the defendant. Unlike what may occur in suits against non-governmental defendants, plaintiffs should have little difficulty locating and serving the Commission. Accordingly, it is not entirely clear that due diligence considerations should apply here. Regardless, as discussed above, we believe that the legislatures decision to provide an explicit deadline by which service of citation must be executed foreclosed due-diligence considerations and instead imposed an absolute [**25] deadline that a party must comply with in order to maintain his suit. Moreover, although TJFA sent a copy of its petition to the Commission and thereby gave the Commission notice of the suit, providing notice is not the same as executing service of citation. See Sierra Club II, 70 S.W.3d at 813. Executing service of citation is more formal than merely providing notice, seeTex. R. Civ. P. 99-119 (specifying requirements for service); see also id. R. 21a (stating that every notice required by rules of civil procedure other than the citation . . . may be served by delivering a copy to the party to be served), and is the process by which a party is informed that he has been sued and that he is required to make an appearance and answer the opposing partys claims, Sierra Club II, 70 S.W.3d at 813. Accordingly, we do not believe that TJFAs actions could be deemed as complying with the purpose of the statute.

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

view of determinations made by the Commission, the legislature curtailed this limited waiver of sovereign immunity by requiring that a suit for judicial review be filed within 30 days of a decision by the Commission and that service be executed within 30 days of filing suit. Cf. Texas Dept of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 198 (Tex. 2004) (concluding that right to judicial review under administrative procedure act provides a limited waiver of sovereign immunity); see also id. at 172 (noting that in absence of agency action affecting vested property right or violating constitutional right, person may only seek judicial review of agency decision if statute provides right to judicial review). By coupling the right to judicial review with a requirement that suits be filed and that service be executed within short deadlines, the legislature has demonstrated its intent to promote the quick resolution of appeals of decisions by the Commission [**29] and to promote the finality of the Commissions actions. In light of the preceding and in light of the fact that HN16 courts are required to narrowly construe statutory waivers of sovereign immunity, see Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008), we must reject TJFAs assertion that the ser6

vice deadline was merely included to promote the proper, orderly and prompt conduct of business. Cf. Chemical Lime, 291 S.W.3d at 403 (explaining that enforcement of deadlines can sometimes lead to harsh results (quoting United States v. Locke, 471 U.S. 84, 100-01, 105 S. Ct. 1785, 85 L. Ed. 2d 64 (1985))).6 For all the reasons previously given, we conclude that the district court properly determined that HN17 the 30-day deadline for [*738] executing service of process was a mandatory statutory requirement. Accordingly, we must conclude that the district court did not err by dismissing TJFAs suit for failing to comply with a mandatory statutory requirement and overrule TJFAs second issue on appeal.7 Transcript Fees In its final issue on appeal, TJFA challenges the portion of the district courts judgment granting BFIs counterclaim against TJFA. As mentioned above, the Commission ordered TJFA and BFI to each pay one-half of the costs for the administrative transcript, but TJFA did not cover its portion of the transcript costs ($6,564.42). Accordingly, BFI paid all of the transcript fees. During the appeal of the Commissions decision, BFI sought reimbursement

TJFA argues that the deadline set by the legislature will not be unduly undermined by a determination that the statutory deadline is directory and not mandatory because a plaintiffs failure to comply would only be excused if he demonstrated that he exercised due diligence in attempting to execute service. However, it is not entirely clear to this Court that a determination that the deadline is directory would actually impose the limitation suggested by TJFA. In other words, a conclusion that the deadline is not mandatory might allow the service requirement to be deemed as fulfilled even if service [**30] was executed well after the petition was filed and regardless of whether the plaintiff diligently attempted to comply. In fact, the deadline might even be considered satisfied provided that the Commission was given notice of the suit even though none of the service-of-citation requirements were ever met. We do not believe that the legislature intended for section 361.321 to be read so broadly.
7

In a letter brief, TJFA argues that a recent case issued by the supreme court compels a determination that the deadline listed in subsection 361.321(c) is directory and not mandatory. See Roccaforte v. Jefferson County, 341 S.W.3d 919 (Tex. 2011). In Roccaforte, the supreme court determined that compliance with a statutory provision requiring notice after a suit was filed was not a jurisdictional prerequisite to [**31] suit. Id. at 925-26. However, the supreme court also determined that the suit was improperly dismissed even though the plaintiff failed to provide notice within the deadline specified by the governing statute. Id. at 92627. Essentially, the supreme court determined that the purpose of the notice provision was satisfied even though the notice was not mailed in accordance with the statutory provision because notice was actually given within the statutory deadline. Id. at 926. In light of this case and in light of the fact that TJFA hand-delivered a copy of its petition to the Commission, TJFA insists that it substantially complied with the service provision and that the purpose of the provision was satisfied. We believe that TJFAs reliance on Roccaforte is misplaced. That case involved a statute requiring that notice be given, but the statute at issue in this case relates to execution of service. As discussed earlier, providing notice is not equivalent to executing service, and the requirements for executing service are more formal than merely providing notice. See Sierra Club II, 70 S.W.3d at 813; cf. In the Interest of J.T.O., No. 04-07-00241-CV, 2008 Tex. App. LEXIS 303, at *2 (Tex. App.San Antonio Jan. 16, 2008, no pet.) [**32] (mem. op.) (explaining that rules relating to service of citation are mandatory and that failure to comply with rules renders service ineffective). Accordingly, actions that might be deemed substantially compliant with a notice provision will not necessarily be sufficient to comply with the requirements of a provision governing service of citation.

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

for half of the transcript fees, and the district court ordered TJFA to pay the amount ordered by the Commission. In challenging this portion of the district courts judgment, TFJA does not challenge the propriety of the Commissions decision to require it to pay part of the transcript costs or the amount of the costs. Instead, TJFA argues [**33] that because the district court erred by dismissing the suit, the granting of BFIs counterclaim must be reversed and the matter remanded . . . to be considered on the merits. In fact, although TJFA couches its concession in terms of its jurisdictional assertions summarized in the first issue, TJFA admits that if its appeal of the dismissal is unsuccessful, BFIs indemnity claim would by necessity be granted.

David Puryear [**34] , Justice Before Chief Justice Jones, Justices Puryear, Pemberton, Henson, Rose and Goodwin; Concurring and Dissenting Opinion by Justice Henson; Concurring Opinion by Justice Rose Modified and, as Modified, Affirmed Filed: May 4, 2012 Concur by: Jeff Rose; Diane M. Henson
Concur

CONCURRING OPINION

I join in the majoritys opinion, but write separately to emphasize our deference to the Texas Supreme Courts expressly stated relucAs discussed previously, we conclude that the district court did not err by dismissing the suit. tan[ce] to conclude that a provision is jurisdictional, absent clear legislative intent to that efIn light of our determination, we overrule TJ1 FAs final issue as presented on appeal and ex- fect, which furthers its policy to reduce the vulnerability of final judgments to attack press no further comment regarding the propriety of the district courts decision enforcing the on the ground that the tribunal lacked subject matter jurisdiction.2 I can think of few greater portion of the Commissions order that rethreats to the finality of a judgment than to quired TJFA to pay half of the transcript fees. deem post-filing service-of-citation requirements as jurisdictional. And given the LegislaCONCLUSION tures use of the word prerequisites rather We conclude that the 30-day deadline for execut- than the general word requirements in secing service of citation under section 361.321 tion 311.034 of the Code Construction Act,3 I see of the health and safety code [*739] is not a ju- no clear legislative intent to deem section risdictional prerequisite to suit but is a manda- 361.321(c)s post-filing requirement for service tory statutory requirement. In addition, we of citation a jurisdictional prerequisite to overrule TJFAs third issue regarding the tran- suit.4 script fees. We therefore modify the district courts judgment accordingly and affirm the dis- Accordingly, I respectfully concur in the opinion and the judgment. trict courts judgment of dismissal.
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 Dubais 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). Dubai, 12 S.W.3d at 76 (quoting Restatement (Second) of Judgments 11 cmt. e, at 113 (1982)).

2 3

SeeTex. Govt Code Ann. 311.034 (West 2010) (providing that statutory prerequisites to suit . . . are jurisdictional requirements in all suits against a governmental entity); Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 925 (Tex. 2010) (Section 311.034 applies to prerequisites to suit, not notice requirements that can be satisfied only after suit is filed.) (emphasis in original); see also Scott v. Presidio Indep. Sch. Dist., 266 S.W.3d 531, 535 (Tex. App.Austin 2008) (op. on rehg) (A statutory prerequisite to a suit . . . against a governmental entity refers to a step or condition that must be satisfied before the suit against the state can be filed.), revd 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, *739; 2012 Tex. App. LEXIS 3594, **34

Jeff Rose, Justice Before Chief Justice Jones, Justices Puryear, Pemberton, Henson, Rose and Goodwin. Filed: May 4, 2012 Dissent by: Diane M. Henson
Dissent

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 conclude that the service deadline set forth in subsection 361.321(c) is directory. Turning first to the plain meaning of the words used, the statutory provision at issue directs that service must be made within thirty days but fails to specify the proper consequences for noncompliance. [**38] Thus, the plain language of the provision itself fails to establish that the deadline is mandatory. See Helena Chem. Co., 47 S.W.3d at 493 (noting that word must is given mandatory meaning when followed by noncompliance penalty). Generally a provision is treated as directory if it requires that an act be performed within a certain time but does not specify the consequences for noncompliance; however, this conclusion is not automatic. Chisholm, 287 S.W.2d at 945; see Edwards Aquifer Auth. v. Chemical Lime, Ltd., 291 S.W.3d 392, 404 (Tex. 2009). Therefore, we must examine the nature and object of the statute to determine the legislatures intent. See Texas Mut. Ins. Co., 275 S.W.3d at 552.

CONCURRING AND DISSENTING OPINION

While I agree that the failure to effectuate service within the deadline for service set forth in subsection 361.321(c) of the health and safety code is not jurisdictional, I disagree with the majoritys conclusion that the service deadline is mandatory. SeeTex. Health & Safety Code Ann. 361.321(c) (West 2010). Because I would instead conclude that the statutory service deadline is directory and that dismissal is not required when the plaintiff demonstrates that the substantial purpose of the statute is met and the Commission is not prejudiced by the delay, I respectfully dissent. As the majority concedes, and I agree, the statute in this case is designed to allow for judiA statutory provision is directory if it promotes cial review of determinations made by the Comthe proper, orderly, [**37] and prompt conmission. I also agree that the legislature has duct of business. Chisholm v. Bewley Mills, 155 simultaneously demonstrated an intent to proTex. 400, 287 S.W.2d 943, 945 (Tex. 1956). mote the quick resolution of appeals of deciConversely, courts construe a statutory provisions by the Commission and to promote the fision as mandatory when the power or duty to nality of the Commissions actions. However, which it relates is for the public good. Albertthe majority relies in part on the fact that sons, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. the statute operates as a waiver of sovereign im1999). As the majority correctly points out, munity, a jurisdictional issue, to conclude there is no absolute test to determine whether [*740] [**39] that the service deadline was ina statutory provision is mandatory or directended to do more than promote the proper, ortory. See Chisholm, 287 S.W.2d at 945. To de- derly and prompt conduct of business. termine whether the legislature intended a proBased on the nature and objective of the statvision to be mandatory or directory, we consider ute, I disagree. the plain meaning of the words used, as well as the entire act, its nature and object, and the The purpose of service of citation generally is consequences that would follow from each con- to give the court jurisdiction over the parties and struction. See Helena Chem. Co. v. Wilkins, to provide notice to the defendant that it has 47 S.W.3d 486, 494 (Tex. 2001); Texas Mut. Ins. been 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 result that leaves the decisions and judgments of [a tribunal] in limbo and subject to future attack, unless that was the Legislatures clear intent) (citing Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 84 (Tex. 2008)).

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

S.W.3d 315, 319 (Tex. App.Austin 2002, no pet.). Notice by service thereby gives the defendant a chance to answer and defend the lawsuit.1Id. There is no indication that the legislature intended for service of citation to promote a purpose other than notice of the suit against the Commission. By including a statutory deadline in which to effectuate service, the legislature has indicated an intention to minimize delays in service beyond thirty days. Because the deadline concerns prompt notice and the quick resolution of judicial review, it thereby serves to promote the proper, orderly, and prompt conduct of business. Chisholm, 287 S.W.2d at 945. Accordingly, I would conclude that the service deadline presented in subsection 361.321(c) is directory. A conclusion that the service deadline is directory is especially compelling when we consider the consequences of the interpretation urged by the majority. Under the majoritys interpretation, any delay in service of citation for any reason would result in dismissal of the case. This result is particularly harsh given the relatively short deadline for service and the fact that service may be delayed by circumstances outside the control of the plaintiff. Cf. Texas Dept of Pub. Safety v. Guerra, 970 S.W.2d 645, 649 (holding that statutory requirement that hearing be held within forty days is directory, and noting that it would be unreasonable to punish plaintiff for acts that are not within its control). I do not believe that the service deadline was intended to create a procedural trap allowing the [Commission] to obtain dismissal when service has been diligently pursued and the Commission has not been
1

prejudiced [**41] by the delay. See Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 926-27 (Tex. 2011) (explaining that noncompliance with statutory requirement that notice must be mailed to county officials within 30 days of filing of suit did not require dismissal when notice was instead hand-delivered, despite provision requiring dismissal for failure to give notice as required). Having determined that the service deadline is directory, we next determine the proper consequences for TJFAs failure to strictly comply.2See Texas Dept of [*741] Pub. Safety v. Dear, 999 S.W.2d 148, 152 (Tex. App. Austin 1999, no pet.) (noting that when statute is directory, if act is performed, but not in the time or in the precise mode indicated, it will be still be sufficient, if that which is done accomplishes the substantial purpose of the statute); cf. Reese v. Duncan, 80 S.W.3d 650, 658 (Tex. App.Dallas 2002, pet. denied) (noting that when statute is mandatory whether there was substantial compliance is not relevant). When, as in this case, a statute is silent about the consequences of noncompliance, we look to the statutes purpose to determine the proper consequences. Helena Chem. Co, 47 S.W.3d at 494; Hines v. Hash, 843 S.W.2d 464, 468 (Tex. 1992). A similar issue, regarding the proper consequences for noncompliance with a statutory notice requirement, was recently addressed by the Texas Supreme Court in Roccaforte v. Jefferson County, 341 S.W.3d at 926-27. In that case, the supreme court held that the plaintiffs failure to deliver notice of suit to county of-

In contrast, filing deadlines, such as the deadline to file a petition [**40] set forth in subsection 361.321(c), seek to set a time limit on a partys ability to invoke the courts subject-matter jurisdiction over the controversy. SeeTex. Health & Safety Code Ann. 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 consequence for noncompliance is necessarily dismissal of the suit. While the failure to comply with a nonjurisdictional requirement mandated by statute may result in the loss of a claim, the Texas Supreme Court has recognized that noncompliance with a mandatory 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 of a claim . . . .); but see Albertsons, Inc. v. Sinclair, 984 S.W.2d 958, 961-62 (Tex. 1999) (noting that failure to comply with mandatory notice provision under workers 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 practices act does not require dismissal of plaintiffs 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 dismissal, explaining [T]he issue is not whether shall is mandatory, but what consequences follow a failure to comply.).

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

prepare a defense. Further, while service was formally effected eleven days after the deadline, TJFA presented evidence that its failure to effect service sooner was due to a misunderstanding on the part of trial counsel and a possible error by the district clerk. Specifically, TJFA presented evidence that counsel for TJFA incorrectly believed that electronic filing would also accomplish service of the citation and that it did not receive[] notice [*742] of As previously discussed, the purpose of the stat- the Original Petitions readiness for service ute in this case is to allow for the review of via First Class mail until the statutory deadCommission decisions, while the purpose of the line for service had already passed.4 Upon learnservice deadline set forth in subsection ing that the Commission had not received ser361.321(c) is to ensure that the Commission re- vice of citation, TJFA immediately effected ceives prompt notice of the suit so that it may formal service. answer and prepare a defense. The statute does Under [**46] these circumstances, I would connot indicate that termination of the plaintiffs substantive rights for late service is required or clude that TJFA substantially complied with the service deadline set forth in subsection that the purpose of the service deadline is 361.321(c), such that the substantial purpose of best served by such termination. See State v. $435,000.00, 842 S.W.2d 642, 644 (Tex. 1992) the statutory deadline was met and the Commission was not prejudiced as a result of the de(If the Legislature had intended dismissal to be the consequence of a failure to hear a forfei- lay. See Roccaforte, 341 S.W.3d at 926. Accordingly, I would reverse the trial courts ture case within the prescribed period, it judgment granting the Commissions motion to could easily have said so . . . .). Instead, like Roccaforte, the substantial purpose of the stat- dismiss and remand this cause to the trial court for further proceedings consistent with ute may be accomplished without requiring authis opinion. tomatic dismissal of the suit. ficials by mail, an express statutory requirement, did not require dismissal of the suit against the county.3Id. Instead, the court recognized that the purpose of the notice provision was to ensure that county officials are made aware of pending suits, allowing the county to answer and defend the case, and that this purpose was served where the plaintiff gave notice to county officials by hand delivery. Id. It is undisputed that TJFA timely filed suit for judicial review and that notice of the suit was emailed to the Commission the same day. Thus, the Commission had actual notice of TJFAs suit, enabling it to [**45] answer and Diane M. Henson, Justice Before Chief Justice Jones, Justices Puryear, Pemberton, Henson, Rose and Goodwin Filed: May 4, 2012

The statutory provision at issue in Roccaforte v. Jefferson County, section 89.0041 of the local government code, also provides that [i]f a person does not give notice as required by this section, the court in which the suit is pending shall dismiss the suit on a motion for dismissal made by [**44] the county or the county official. 341 S.W.3d 919, 925 (Tex. 2011); seeTex. Loc. Govt 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 review of an administrative decision does not necessarily result in dismissal of the suit. 182 S.W.3d 430, 432 (Tex. App.Austin 2005, no pet.). Instead, we held that the date of service of citation relates back to the date of plaintiffs filing suit for judicial review, and thus is timely, when the plaintiff exercises due diligence in effecting service. Id.

CAUSE NO.: DC-12-10604 MELISSA KINGSTON, Plaintiff, v. AVI ADELMAN, Defendant. IN THE DISTRICT COURT

DALLAS COUNTY, TEXAS

44th JUDICIAL DISTRICT

ORDER ON PLAINTIFFS MOTIONS TO PROCEED WITH DISCOVERY

On February 28, 2013, the Court considered Plaintiffs Motion to Proceed with Discovery and Plaintiffs Supplemental Motion to Proceed with Discovery. After consideration of the motions, the evidence, argument of counsel, and supplemental briefs filed, the Court finds Plaintiffs motions should be and are hereby DENIED. The Court finds it has jurisdiction to hear Defendants Anti-S.L.A.P.P. Motion to Dismiss, and is therefore ORDERED that the hearing on said motion currently on the Courts 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