concluding that an analogous provision regarding service of citation under the Solid Waste Disposal Act was mandatory and that by providing an explicit deadline, "the legislature has indicated its intention to foreclose the possibility of excusing delays between filing and executing service due to diligent efforts at service undertaken by plaintiffs"
How later courts described this case
- concluding that an analogous provision regarding service of citation under the Solid Waste Disposal Act was mandatory and that by providing an explicit deadline, "the legislature has indicated its intention to foreclose the possibility of excusing delays between filing and executing service due to diligent efforts at service undertaken by plaintiffs"
- stating that untimely service is not jurisdictional defect but is in nature of failure to comply with statute of limitations where defendant may argue case should be dismissed for untimely service
- interpreting statutory provision in Health and Safety Code requiring that “[sjervice of citation must be accomplished not later than the 30th day after the date on which the petition is filed” and concluding that service was not statutory prerequisite “given that the service deadline occurs after a suit has been filed”
- construing statutory provision expressly providing for service of process within 30 days of the date petition is filed, noting that statutory deadline for executing service of process was “after the suit has been filed,” and holding that execution of service was not statutory prerequisite to suit
Written by the judges who cited it.
The opinion
JEFF ROSE, Justice,
concurring.
I join in the majority’s opinion, but write separately to emphasize our deference to the Texas Supreme Court’s expressly stated “reluctan[ce] to conclude that a provision is jurisdictional, absent clear legislative intent to that effect,” 1 which furthers its policy “ ‘to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction.’ ” 2 I can think of few greater threats to the finality of a judgment than to deem post-filing service-of-citation requirements as jurisdictional. And given the Legislature’s use of the word “prerequisites” rather than the general word “requirements” in section 311.034 of the Code Construction Act, 3 I see no “clear legislative intent” to deem section 361.321(e)’s post-filing requirement for service of citation a jurisdictional prerequisite to suit. 4
Accordingly, I respectfully concur in the opinion and the judgment.
. City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex.2009) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.2000) and applying Dubai's principles to an administrative appeal); see 2 Beal, Texas Administrative Practice and Procedure § 11.2.1 [a] (2011) (discussing if and how supreme court would apply Dubai to administrative appeals).
. Dubai, 12 S.W.3d at 76 (quoting Restatement (Second) of Judgments § 11 cmt. e, at 113 (1982)).
. See Tex. Gov’t Code Ann. § 311.034 (West 2010) (providing that "statutory prerequisites to suit ... are jurisdictional requirements in all suits against a governmental entity”); Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 925 (Tex.2010) ("Section 311.034 applies to prerequisites to suit, not notice requirements that can be satisfied only after suit is filed.”) (emphasis in original); see also Scott v. Presidio Indep. Sch. Dist., 266 S.W.3d 531, 535 (Tex.App.-Austin 2008) (op. on reh'g) ("A 'statutory prerequisite to a suit ... against a governmental entity’ refers to a step or condition that must be satisfied before the suit against the state can be filed.”), rev'd on other grounds, 309 S.W.3d 927 (Tex.2010).
.See Tex. Health & Safety Code Ann. § 361.321 (c) (West 2010) (requiring service of citation within 30 days of filing petition for judicial review of TCEQ decision); City of DeSoto, 288 S.W.3d at 394 (noting that our "focus is to 'avoid a result that leaves the decisions and judgments of [a tribunal] in limbo and subject to future attack, unless that was the Legislature's clear intent”) (citing Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 84 (Tex.2008)).