Ac Interests, L.P., Formerly American Coatings, L.P. v. Texas Commission on Environmental Quality

IN THE SUPREME COURT OF TEXAS
══════════
No. 16-0260
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AC INTERESTS, L.P., FORMERLY AMERICAN COATINGS, L.P., PETITIONER,
v.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, RESPONDENT
══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
══════════════════════════════════════════
JUSTICE BOYD, joined by JUSTICE JOHNSON, dissenting.
The Texas Clean Air Act provides that a person “may appeal” a Texas Commission on
Environmental Quality decision “by filing a petition in a district court of Travis County.” TEX.
HEALTH & SAFETY CODE § 382.032(a). The petition “must be filed within 30 days after” the
decision’s effective date, id. § 382.032(b), and service of citation on the Commission “must be
accomplished within 30 days after the date on which the petition is filed,” id. § 382.032(c). AC
Interests filed this suit to appeal the Commission’s decision to deny AC Interests’s claim to certain
emission-reduction credits. It timely filed its petition within thirty days after the Commission’s
decision, but it did not serve citation on the Commission until fifty-eight days later. The primary
issue is whether AC Interests may pursue the appeal after missing the statute’s service-of-citation
deadline.
The Court holds that subsection (c)’s deadline is merely “directory,” rather than
“mandatory,” so AC Interests’s failure to meet the deadline does not preclude it from pursuing the
appeal. Ante at ___. The Court agrees that the deadline creates a condition precedent, ante at ___,
but it identifies no right or duty that is conditioned on the precedent.1 Under the Court’s reasoning,
the deadline is a condition precedent that conditions nothing at all. As a result, the deadline means
nothing at all. I disagree. The deadline—which subsection (c) says the party “must” meet—must
be a condition on something, and the only thing it can be a condition on is the right to pursue the
appeal. The statute’s plain language compels that result, and that result promotes the statute’s
apparent purposes. I would hold that because AC Interests failed to serve citation on the
Commission within thirty days, as the statute says a party who wants to appeal a Commission
decision “must” do, it cannot pursue this appeal. Because the Court holds otherwise, I respectfully
dissent.
I.
The Statute’s Plain Language
The Clean Air Act prescribes a specific process for those who want to appeal a Commission
decision, and it does so by using varying directives—“may,” “must,” or “shall”—for each step
along the way:
 A person “may” appeal the Commission’s decision “by filing a petition in a district court
of Travis County.”2
1
“A condition precedent is an event that must happen or be performed before a right can accrue to enforce
an obligation.” Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992) (citing Hohenberg Bros. Co. v. George E.
Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976)); see also Helton v. R.R. Com’n of Tex., 126 S.W.3d 111, 119 (Tex.
App.—Houston [1st Dist.] 2003, pet. denied) (“By not serving Harris with a copy of the petition for judicial review,
as mandated by section 2001.176(b)(2) of the APA, however, Helton did not meet a necessary condition on which its
right to seek judicial review of the commission’s order depended.”).
2
TEX. HEALTH & SAFETY CODE § 382.032(a).
2
 The petition “must be filed within 30 days” after the decision’s effective date.3
 Service of citation on the Commission “must be accomplished within 30 days” after the
plaintiff files the petition.4
 The citation “may” be served on the executive director or any member of the Commission.5
 The plaintiff “shall” pursue the action with reasonable diligence.6
 The court “shall” presume the action has been abandoned if the plaintiff fails to prosecute
the action within one year after the date on which the action is filed.7
 The court “shall” dismiss the suit upon the attorney general’s motion, unless the plaintiff
“can show good cause for the delay.”8
We need not guess at the meanings of these directives, as the Legislature has defined them
in the Code Construction Act. When a statute uses the term “must,” it “creates or recognizes a
condition precedent,” TEX. GOV’T CODE § 311.016(3); when a statute uses the term “shall,” it
“imposes a duty,” id. § 311.016(2); and when a statute uses the term “may,” it “creates
discretionary authority or grants permission or a power,” id. § 311.016(1). These definitions apply
to all statutes “unless the context in which the word or phrase appears necessarily requires a
different construction” or “a different construction is expressly provided by statute.” Id. § 311.016.
The Clean Air Act does not provide an alternative meaning for these terms and, contextually,
3
Id. § 382.032(b).
4
Id. § 382.032(c).
5
Id.
6
Id. § 382.032(d).
7
Id.
8
Id.
3
nothing compels a contrary conclusion. In the context of the Clean Air Act’s procedural provisions,
affording these words their statutorily prescribed meaning enforces the orderly administrative
process the Legislature provided for claimants to appeal the Commission’s decisions. See TEX.
HEALTH & SAFETY CODE § 382.032.
Applying the definitions the Legislature has provided, I would follow a simple, plain-
language approach and construe the statutorily-required process as follows:
 “May” appeal: AC Interests had statutory permission to appeal the Commission’s
decision, and it could exercise that right “by filing a petition in a district court of Travis
County,” but it was not required to appeal.
 “Must” file within thirty days: As a condition precedent to pursuing its appeal, AC Interests
was required to file its petition within thirty days after the decision’s effective date. If AC
Interests failed to file its petition within that time frame, it could not pursue its appeal.
 “Must” accomplish service of citation within thirty days: As another condition precedent
to pursuing its appeal, AC Interests was required to accomplish service of citation within
thirty days after filing its petition. If AC Interests failed to effectuate service within that
time frame, it could not pursue its appeal.
 “May” serve on director or members: In effecting service, AC Interests had
statutory permission to serve the citation either on the Commission’s executive
director or any Commission member.
 “Shall” pursue with diligence: After it completed the first three steps, AC Interests had a
duty to prosecute its action with reasonable diligence.
 “Shall” presume abandoned and “shall” dismiss: If AC Interests failed to prosecute the
appeal within one year, the court had a duty to presume that AC Interests had abandoned
the suit—and a duty to dismiss the suit—absent a showing of good cause for the delay.
The Court rejects this construction, at least of the service-of-citation deadline, because the
statute does not expressly state that the suit will be dismissed if the claimant fails to meet that
deadline. Ante at ___. According to the Court, even though the statute uses the word “must,” even
though that word creates a condition precedent, and even though it is therefore “mandatory” under
4
any ordinary understanding, the requirement is merely directory because the statute does not
expressly state that AC Interests cannot pursue its appeal if it fails to effectuate service of citation
within thirty days.
This Court has struggled for decades—without much meaningful success—to identify a
clear standard for determining whether a statutory requirement is “mandatory” or “directory.” See
Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956) (“There is no absolute test by which
it may be determined whether a statutory provision is mandatory or directory.”). We have said
that, in general, 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.” Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 494 (Tex. 2001). When the statute expressly states a consequence for
noncompliance, of course, the Court’s task is simply to apply that consequence. But when the
statute fails to expressly state a consequence for noncompliance, our task becomes more difficult.
We have concluded that the absence of any stated consequence “may be considered as a
circumstance tending to support a directory construction,” meaning the statute imposes no
consequence for noncompliance. Chisolm, 287 S.W.2d at 945. But we have also warned that this
holding “does not suggest that when no penalty is prescribed, ‘must’ is non-mandatory.” Edwards
Aquifer Auth. v. Chem. Lime, Ltd., 291 S.W.3d 392, 404 (Tex. 2009).
Ultimately, we have concluded that when “the statute is silent about consequences of
noncompliance, we look to the statute’s purpose in determining the proper consequence of
noncompliance.” Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999) (per curiam); see
Hines v. Hash, 843 S.W.2d 464, 468 (Tex. 1992) (“When the statute is silent, we have looked to
5
its purpose for guidance.”). Applying this approach here, I conclude that the Clean Air Act requires
timely service of citation as a condition precedent to a suit for judicial review both because the
statute’s text and context compel that result and because that result best supports the statute’s
presumed purposes.
II.
Text and Context
Reading subsection 382.032(c)’s service-of-citation deadline in context makes dismissal
the only logical consequence for noncompliance. Subsections (a), (b), and (c) together stipulate
that a person “may appeal” a Commission decision by filing a petition, but the petition must be
filed within thirty days after the decision, and service of citation must be accomplished within
thirty days after filing. The Court agrees that a party who misses subsection (b)’s filing deadline
“may not appeal,” because that deadline is “jurisdictional” and “relates to the very act necessary
to establish a claim, right, or benefit under the statute.” Ante at ___.9 But according to the Court,
a party who misses subsection (c)’s service-of-citation deadline may still appeal because
subsection (a) says the party “may appeal” by filing the petition, not by serving the citation. Ante
at ___. According to the Court, we can only conclude that dismissal is the consequence for failing
to timely serve citation by “blindly searching” the statute and then “creating” or “inventing” that
consequence. Ante at ___.
9
The Court cites to section 311.034 of the Government Code for the proposition that “Filing a timely petition
under the statute is a jurisdictional requirement.” Ante at ___ (citing TEX. GOV’T CODE § 311.034). But section
331.034 actually supports the notion that serving citation and any embedded timing requirements are also jurisdictional
requirements. See TEX. GOV’T CODE § 311.034 (“Statutory prerequisites to a suit, including the provision of notice,
are jurisdictional requirements in all suits against a governmental entity.”).
6
I disagree. If, as the Court suggests, merely filing a petition is the sole condition precedent
to appeal, then the mere filing of a petition would always be sufficient, and subsection (b)’s
deadline for that filing would not be a condition precedent. But if timely filing the petition is also
a condition precedent to the right to appeal, as the Court agrees it is, then we must read subsections
(a) and (b) together to determine the effect of missing that deadline. But then there is no principled
reason to read subsection (c)—or to understand its application to subsection (a)—differently from
subsection (b) and its application. Even after the plaintiff has filed a petition, the trial court’s
“jurisdiction is dependent upon citation issued and served in a manner provided for by law,” and
“[a]bsent service, waiver, or citation, mere knowledge of a pending suit does not place any duty
on a defendant to act.” Wilson v. Dunn, 800 S.W.2d 833, 836–37 (Tex. 1990). Service of citation,
in other words, is effectively as “jurisdictional” as the filing of the petition, and equally as
“necessary to establish a claim, right, or benefit under the statute.” Ante, at ___.
A claimant cannot obtain judicial review simply by filing a petition. While subsection (a)—
when read alone—says that a person “may appeal by filing a petition,” subsection (c) recognizes
that inherent in the act of filing a petition is the constitutionally required step of serving process
on the named defendant. The “mere filing of the plaintiff’s petition is not all that is required to
‘commence’ the suit,” Owen v. City of Eastland, 78 S.W.2d 178, 179 (Tex. Comm’n App. 1935)
(addressing statutes of limitations), because “those not properly served [with citation]
have no duty to act, diligently or otherwise,” Ross v. Nat’l Ctr. for the Emp’t of the Disabled, 197
S.W.3d 795, 798 (Tex. 2006) (per curiam). Initiating a lawsuit is always a two-step process of
filing and serving process, and subsections (b) and (c) impose deadlines on both of those steps.
7
The Court asserts that subsections (a) and (b) must be read together because both refer to
the filing of the petition and subsection (b) simply defines what it means to file a petition as
subsection (a) requires. Ante at ___. Thus, according to the Court, if you file a petition (as
subsection (a) requires) but fail to file it within thirty days (as subsection (b) requires), “you have
not filed a petition and, therefore, may not appeal.” Ante at ___. The statute’s language does not
support that construction. If you file a petition but fail to file it within thirty days, you have still
filed a petition, but you have not filed it timely. Because subsection (b) says you “must” file it
timely—making timely filing a condition precedent to appeal—you cannot pursue the appeal even
though you have filed a petition. In the same way, because subsection (c) says you “must” timely
serve citation on the Commission, you cannot pursue the appeal even though you have timely filed
the petition. Without service of citation, the filed petition cannot provide any basis for judicial
review. For this reason, I conclude that the statute requires that the consequence for failing to
timely serve citation on the Commission is dismissal of the petition seeking judicial review. The
person who elects to appeal by filing a petition “must” timely file the petition and “must” timely
serve citation, and the consequence for failing to comply with either requirement is simply that the
person cannot appeal.
Under the Court’s approach, by contrast, the term “must” requires dismissal if the person
fails to timely file the petition, but the same term imposes no consequence at all if the person fails
to timely serve citation. The Court reasons that, unlike a “jurisdictional requirement, where failure
to comply results in dismissal,” subsection (c) “does not state a consequence and, importantly, no
8
consequence is logically necessary.” Ante at ___.10 But serving citation is jurisdictional, as is any
requirement that can be fairly characterized as a “statutory prerequisite.” See TEX. GOV’T
CODE § 311.034. (“Statutory prerequisites to a suit, including the provision of notice, are
jurisdictional requirements in all suits against a governmental entity.”). The Court’s construction
improperly renders the service-of-citation deadline completely meaningless. See Crosstex Energy
Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex. 2014) (“We presume the Legislature
chose statutory language deliberately and purposefully. We must not interpret the statute ‘in a
manner that renders any part of the statute meaningless or superfluous.’”) (citing Tex. Lottery
Com’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010) and quoting Columbia
Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008)). If AC Interests can
pursue this appeal even though it failed to serve citation within thirty days, then it is not true that
the claimant “must” accomplish service of citation within thirty days. According to the Court’s
reading, AC Interests “can,” “could,” “may,” “might,” or even “should” serve citation within thirty
days, but it cannot be said that it “must” do so, even though that’s what subsection (c) in fact says.
The Court attempts to avoid this reality by suggesting that “other possible consequences
exist,” ante at ___, but it cannot identify any other consequences that could apply to the failure to
timely serve citation under subsection (c). The only “other consequence” the Court suggests is
abatement, ante at ___, but it makes no effort to explain how abatement would ever be appropriate
to address the late service of citation, and I cannot see how it would. The only “possible”
10
The Court also cites Roccaforte v. Jefferson County, 341 S.W.3d 919, 925 (Tex. 2011) for the proposition
that “failure to give statutorily required post-suit notice is not jurisdictional.” Ante at ___. The statute in that case did
not address service of citation, but rather general notice. See Roccaforte, 341 S.W.3d at 927 (“Roccaforte’s claims
against the county should not have been dismissed for lack of notice.”).
9
consequence that could appropriately result from missing the service-of-citation deadline is the
one the statute itself requires by using the word “must”: the loss of the right to pursue the appeal.
See, e.g., Edwards Aquifer, 291 S.W.3d at 404 (“The only penalty the [act at issue] suggests is that
late applications will not be considered.”).
We have recognized that, when a particular statutory provision imposes a requirement
without expressly stating a consequence for noncompliance, other provisions of the same statute
may provide guidance as to what the consequence should be. In Helena Chemical, for example,
although the statute required that a claim for arbitration be filed by a particular time, we concluded
that the failure to timely file the claim did not require dismissal because another provision of the
statute required trial courts to take into account the arbitrators’ findings “as to the effect of delay
in filing the arbitration claim.” 47 S.W.3d at 494. Here, however, other statutory provisions support
the conclusion that the consequence for failing to timely serve citation is dismissal.
First, the Legislature’s inclusion of a good-cause exception for delay in subsection (d)—
which applies only after a claimant has timely filed its petition and timely served citation—
evidences the Legislature’s intent that a claimant strictly comply with the filing and service
deadlines in subsections (a), (b), and (c), none of which contain a good-cause exception. This is
not a novel concept. See PPG Indus., Inc. v. JMB/Hous. Ctrs. Partners Ltd. P’ship, 146 S.W.3d
79, 84 (Tex. 2004) (“When the 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. If so, we must honor that
difference.”). As the court of appeals correctly noted, the thirty-day service provision “does not
have an exception for good and sufficient cause.” 521 S.W.3d at 63; see also TJFA, L.P. v. Tex.
Com’n on Envtl. Quality, 368 S.W.3d 727, 737 (Tex. App.—Austin 2012, pet. denied) (“The
10
legislature’s decision to not include a provision allowing a party to explain why compliance with
the deadline was not achieved is instructive. This seems particularly true in this case in light of the
fact that in the very next provision, the legislature afforded parties the ability to explain why their
suit should not be dismissed for failure to pursue the claim ‘with reasonable diligence.’”).
Second, the Legislature’s decision to include a specific time period compels the conclusion
that dismissal is required, and that decision must be afforded some significance. See Edwards
Aquifer, 291 S.W.3d at 403 (“The importance of a fixed filing deadline is apparent in the [Edwards
Aquifer Authority Act]. The Legislature picked a specific, calendar date by which permit
applications were required to be filed.”); TJFA, 368 S.W.3d at 735 (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”).
Recently, we noted that “absent statutory language to the contrary, a statutorily imposed
time period does not allow for substantial compliance.” BankDirect Capital Fin., LLC v. Plasma
Fab, LLC, 519 S.W.3d 76, 83 (Tex. 2017). In addition, we have recognized that a deadline “is not
something one can substantially comply with. A miss is as good as a mile.” Edwards Aquifer, 291
S.W.3d at 403. And although the Court may be concerned that dismissal is too harsh a remedy, we
noted in BankDirect that “[s]tatutes that impose timelines naturally burden those who miss them.”
519 S.W.3d at 85. When the statute’s words are clear, equity must give way to certainty and
predictability. This is especially true in the service-of-citation context, which generally requires
strict compliance in one form or another. See Wilson, 800 S.W.2d at 836; Uvalde Country Club v.
11
Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam) (“Moreover, failure to
affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted
service of process invalid and of no effect.”) (citing McKanna v. Edgar, 388 S.W.2d 927, 929
(Tex. 1965)).11
III.
The Statute’s Purposes
Even if we concluded that the statute’s plain language does not make the timely service of
citation a condition precedent to pursuing the appeal, and we were thus required to “look to the
statute’s purpose in determining the proper consequence of noncompliance,” Albertson’s, 984
S.W.2d at 961, I would reach the same conclusion. In the broadest sense, the Clean Air Act’s
“policy and purpose is ‘to safeguard the state’s air resources from pollution by controlling or
abating air pollution and emissions of air contaminants.’” S. Crushed Concrete, LLC v. City of
Houston, 398 S.W.3d 676, 678 (Tex. 2013) (quoting TEX. HEALTH & SAFETY CODE § 382.002(a)).
11
See also Wilson, 800 S.W.2d at 836 (“Absent service, waiver, or citation, mere knowledge of a pending
suit does not place any duty on a defendant to act.”); Royal Surplus Lines Ins. Co. v. Samaria Baptist Church, 840
S.W.2d 382, 382–83 (Tex. 1992) (“[U]se of certified mail by a public official to effect service of process when a
statute provides only for registered mail does not violate our strict compliance standard for service of process.”);
McKanna, 388 S.W.2d at 929 (reversing default judgment when plaintiff failed to strictly comply with rules for service
of citation and stating that its holding “is in accord with the established law of this State that it is imperative and
essential that the record affirmatively show a strict compliance with the provided mode of service”); In the Interest of
K.M.C., No. 05-16-00635-CV, 2017 WL 745802, at *1 (Tex. App.—Dallas Feb. 27, 2017, no pet.) (mem. op.) (“Strict
compliance with the rules governing service of citation is mandatory, and failure to comply constitutes error on the
face of the record.”); Nat’l Sur. Corp. v. Anderson, 809 S.W.2d 313, 316 (Tex. App.—Houston [1st Dist.] 1991, no
writ) (“Because rule 101 applies and appellant was served more than 90 days after issuance of the citation, the citation
was void and appellant was not required to answer”) (citing Lewis v. Lewis, 667 S.W.2d 910, 911 (Tex. App.—Waco
1984, no writ)); Lewis, 667 S.W.2d at 911 (“Since service of citation on defendant was 96 days after its issuance, such
was ineffective; defendant was not required to answer; and the default judgment must be vacated.”); Mega v. Anglo
Iron & Metal Co. of Harlingen, 601 S.W.2d 501, 503 (Tex. Civ. App.—Corpus Christi 1980, no writ) (“The Texas
Rules of Civil Procedure relating to the issuance, service and return of citation are generally regarded as mandatory,
and failure to show affirmatively a strict compliance with the Rules will render the attempted service of process invalid
and of no effect.”); Lemothe v. Cimbalista by Gates, 236 S.W.2d 681, 681–82 (Tex. Civ. App.—San Antonio 1951,
writ ref’d) (“[A]ll other rules relating to the issuing and serving of processes are generally regarded as mandatory, and
failure to comply with such rules renders the service thereunder of no effect.”) (citations omitted).
12
The Court suggests that the Act’s judicial-review provisions’ more specific purpose is to “provide
a process for the judicial review of [Commission] decisions” and “to expedite filing and notice and
presumably the appeal itself.” Ante at ___.
Even assuming that correctly states the statute’s purpose, construing the service-of-citation
requirement as a condition precedent to appeal best promotes that purpose. By conditioning the
right to appeal on the claimant’s fulfillment of a duty to diligently and timely seek such review,
the statute ensures that any appeal from a Commission decision must be pursued and resolved in
an efficient and expedited manner. This is consistent with other language in the statute, which
places particular emphasis on timeliness and strict compliance, noting that each chapter must be
“vigorously enforced” and that violations of Commission rules or orders must result in
“expeditious initiation of enforcement actions.” TEX. HEALTH & SAFETY CODE § 382.002(b). As a
court, we have no power to say otherwise. Borowski v. Ayers, 524 S.W.3d 292, 305 (Tex. App.—
Waco 2016, pet. denied) (“The courts possess no legislative powers; therefore, the courts cannot
excuse plaintiffs’ noncompliance with statutory requirements merely because defendants, despite
plaintiffs’ noncompliance, are able to accomplish some of the Legislature’s purpose in imposing
the statutory requirements.”).
The Court, however, makes no effort to address whether and how its construction supports
this purpose. Instead, it simply concludes that, even though the statute’s purpose is to expedite the
resolution of appeals from Commission decisions, it finds “no textual basis to conclude that serving
citation within 30 days of filing the petition is so essential to the statute’s purpose that the
Legislature intended anything less than strict compliance to require dismissal.” Ante at ___. But
because subsection (c) addresses constitutional service of citation, without which the trial court
13
lacks jurisdiction, the Commission has no duty to appear or take any action, and the suit cannot
begin at all, until citation is served. See Wilson, 800 S.W.2d at 836–37; El Paso Indep. Sch. Dist.
v. Alspini, 315 S.W.3d 144, 149 (Tex. App.—El Paso 2010, no pet.) (“Citation serves the purposes
of giving the court jurisdiction over the defendant, satisfying due process requirements, and giving
the defendant an opportunity to appear and defend.”) (citing Cockrell v. Estevez, 737 S.W.2d 138,
140 (Tex. App.—San Antonio 1987, no writ)); Cockrell, 737 S.W.2d at 140 (“The purpose of
citation is to give the court proper jurisdiction of the parties and to provide notice to the defendant
that he has been sued and by whom and for what so that due process will be served and he will
have an opportunity to appear and defend the action.”); see also Tex. Nat. Res. Conservation
Com’n v. Sierra Club, 70 S.W.3d 809, 813 (Tex. 2002) (“[A] ‘citation’ is directed to the defendant,
telling the defendant that he or she has been sued and commanding the defendant to appear and
answer the opposing party’s claims.”).
Thus, service of citation is different from mere notice, and we should be loath to confuse
the two. See Perez v. Perez, 59 Tex. 322, 324 (1883) (“The words citation and notice are by no
means synonymous. . . . A notice is much less formal.”). Indeed, we have observed that “service
of citation” is “a term of art that describes the formal process by which a party is informed that it
has been sued.” Sierra Club, 70 S.W.3d at 813. Contrary to the Court’s suggestion, the statute
provides a “textual basis to infer that” service of citation “is essential to the statute’s purpose”
because, until citation has been served on the Commission, the process of judicial review cannot
commence at all.
Beyond the Court’s identified purpose of expediting appeals from Commission decisions,
I would conclude that another “purpose”—or, I would say, “effect”—of the statute is to express
14
the Legislature’s policy decisions as to when to waive the Commission’s sovereign immunity and
allow for judicial review of executive-branch decisions. Because the statute provides a limited
waiver of immunity, we must construe it narrowly in favor of retaining the State’s immunity. See
In re Smith, 333 S.W.3d 582, 587 (Tex. 2011) (“First, a statutory waiver of sovereign immunity
must be construed narrowly.”) (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d
653, 655 (Tex. 2008) (“We interpret statutory waivers of immunity narrowly. . . .”)); Wichita Falls
State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003) (“[W]hen construing a statute that
purportedly waives sovereign immunity, we generally resolve ambiguities by retaining
immunity.”); Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 854 (Tex. 2002)
(“Subjecting the government to liability may hamper governmental functions by shifting tax
resources away from their intended purposes toward defending lawsuits and paying judgments.”);
Magnolia Petroleum Co. v. Walker, 83 S.W.2d 929, 934 (Tex. 1935) (“‘Legislative grants of
property, rights, or privileges must be construed strictly in favor of the state. . . .’”) (quoting
Empire Gas & Fuel Co. v. State, 47 S.W.2d 265, 272 (Tex. 1932)). Construing the statute to permit
judicial review only when the claimant has complied with the statute’s express requirements best
fulfills this purpose of providing a limited waiver of immunity.
IV.
Conclusion
The Clean Air Act allows a person to appeal a Commission decision by filing a petition in
a Travis County district court. The petition “must” be filed within thirty days after the decision
and service of citation “must” be accomplished within thirty days after filing. The filing and service
requirements are conditions precedent to the right to pursue the appeal. The statute’s plain
language compels this result, and the statute’s effects likewise support this conclusion. I would
15
hold that because AC Interests failed to serve citation on the Commission within thirty days, as
the statute says it “must” do, it cannot pursue this appeal. Because the Court holds otherwise, I
respectfully dissent.
_____________________
Jeffrey S. Boyd
Justice
Opinion delivered: March 23, 2018
16