DAVID PURYEAR, Justice.
TJFA, L.P. ("TJFA") sought judicial review of a decision made by the Texas Commission on Environmental Quality (the "Commission") that granted an application to expand a landfill and that required TJFA to pay half of the transcript fees associated with the hearing addressing the application. Although TJFA filed its suit within the statutory deadline, it did not execute service of citation until after the deadline listed in the health and safety code. See Tex. Health & Safety Code Ann. § 361.321(c) (West 2010). For that reason, the Commission filed a joint plea to the jurisdiction and motion to dismiss. After a hearing, the district court dismissed the suit by granting the plea and, alternatively, dismissed the suit for failure to comply with a mandatory statutory directive. The district court also ordered TJFA to pay the transcript fees imposed by the Commission. We will affirm en banc the district court's dismissal of the suit for failure to comply with a mandatory statutory provision. See Tex.R.App. P. 41.2 (allowing appellate court to decide to consider case en banc).
BFI Waste Systems of North America, Inc. ("BFI") sought to expand its municipal-solid-waste-landfill permit for a landfill on the east side of Austin, Texas. TJFA owned land near the landfill and opposed the expansion suggested by BFI. After a hearing, the Commission approved the proposed expansion and issued an order granting the application for expansion. In its order, the Commission also ordered BFI and TJFA to each pay one-half of the $13,128.85 in transcript fees ($6,564.42 each) generated as a result of the hearing before the Commission.
Shortly after the Commission made its determination, TJFA filed a suit for judicial review of the Commission's decision. See Tex. Health & Safety Code Ann. § 361.321(c) (explaining that to appeal administrative determination, affected party must file petition within 30 days of Commission's decision). Because it was contesting the Commission's determination, TJFA did not pay its portion of the transcript fees, and BFI paid the full amount. On the day that it filed suit, TJFA gave the Commission a copy of the petition, but TJFA did not execute service of citation on the Commission until 41 days after it filed suit. Under the governing statutory provision, "[s]ervice of citation must be accomplished not later than the 30th day after the date on which the petition is filed." Id.
After being served, the Commission filed a joint plea to the jurisdiction and motion to dismiss. In the filing, the Commission asserted that because TJFA did not comply with the 30-day deadline for service of citation, the district court did not have subject-matter jurisdiction over the case. Alternatively, the Commission contended that the suit should be dismissed because TJFA failed to comply with a statutory requirement. After the Commission requested that the case be dismissed, BFI intervened in the case and filed a counterclaim against TJFA for the transcript fees that the Commission ordered TJFA to pay.
In response to the Commission's filing, the district court scheduled a hearing. After the hearing, the district court dismissed the suit. In particular, the district court found that the 30-day deadline for executing service of citation was a jurisdictional prerequisite to suit. Alternatively, the district court determined that the 30-day statutory deadline was "mandatory, not directory." Further, the district court
After the district court made its ruling, TJFA appealed the district court's dismissal.
A party to a case may assert that a trial court is without jurisdiction to consider the case by filing a plea to the jurisdiction. Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex.2007). In cases in which a governmental unit has filed a plea to the jurisdiction, a party to the case may appeal the grant or the denial of the plea. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2008 & Supp. 2011); see also id. § 101.001(3) (West 2011 & Supp. 2011) (defining "governmental unit"). On appeal, we review de novo the trial court's grant or denial of the plea. Ferrell, 248 S.W.3d at 156.
Moreover, the issues asserted by TJFA involve statutory construction, which is a legal question that we review de novo. See MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 501 n. 30 (Tex.2010); Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002); USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex.App.-Austin 2004, pet. denied). In construing a statute, we must ascertain the legislature's intent in enacting the statute. Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). In making this determination, courts should look to the plain meaning of the words used in the statute. See Fireman's Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex.2000). We presume that every word was deliberately chosen and that excluded words were left out on purpose. USA Waste Servs., 150 S.W.3d at 494. When determining legislative intent, the entire act, not isolated portions, must be considered. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex.1998). We may also consider the "object sought to be attained" by enacting the statute and the "consequences of a particular construction." Tex. Gov't Code Ann. § 311.023 (West 2005); see City of Austin v. Southwestern Bell Tel. Co., 92 S.W.3d 434, 442 (Tex.2002).
On appeal, TJFA challenges the district court's alternative bases for dismissing the suit. First, TJFA contends that the district court erred when it determined that the service-of-citation requirement found in section 361.321 of the health and safety code is a jurisdictional prerequisite to suit. Accordingly, TJFA argues that its failure to execute service within 30 days did not deprive the district court of jurisdiction and that the district court therefore erred by granting the Commission's plea to the jurisdiction. Second, TJFA attacks the district court's alternative determination that the case be dismissed because the service requirement is mandatory. Instead, TJFA insists that the provision is merely directory and that its failure to comply with the requirement should be excused because it diligently attempted to execute service. For these reasons, TJFA argues that the district court erred by dismissing the suit and by ordering TJFA to pay half of the transcript fees.
As described above, TJFA's first issue challenges the district court's grant of
For the reasons that follow, we disagree with the Commission. This Court has previously explained what qualifies as a statutory prerequisite to suit. See Scott v. Presidio Indep. Sch. Dist., 266 S.W.3d 531, 535, 537 (Tex.App.-Austin 2008) (op. on reh'g) (concluding that requirement that all parties agree to allow suit to occur in Travis County before suit is filed is statutory prerequisite to suit and, therefore, jurisdictional), rev'd on other grounds, 309 S.W.3d 927 (Tex.2010) (reversing appellate court's determination that Commissioner of Education was required to give consent to suit being filed in Travis County). In the context of suits against the State, this Court reasoned that a statutory prerequisite to suit is "a step or condition that must be satisfied before the suit against the state can be filed." Id. at 535. That construction is consistent with those of other courts of appeals. See County of Bexar v. Bruton, 256 S.W.3d 345, 348 (Tex.App.-San Antonio 2008, no pet.) (stating that common usage of term "[p]rerequisite to suit ... implies a requirement to be fulfilled before suit is filed"); Dallas County v. Hughes, 189 S.W.3d 886, 888 (Tex.App.-Dallas 2006, pet. denied) (observing that ordinary meaning of "[a] prerequisite is something that is required beforehand"). In fact, when construing section 311.034 of the government code, the supreme court explicitly distinguished between prerequisites to suit and requirements that may only be accomplished after a suit is filed. See Roccaforte v. Jefferson County, 341 S.W.3d 919, 925 (Tex.2011). In particular, the supreme court determined that section 311.034 does not apply to "notice requirements that can be satisfied only after suit is filed." See id.; see also Ballesteros v. Nueces County, 286 S.W.3d 566, 569-70 (Tex.App.-Corpus Christi 2009, pet. denied) (holding that compliance with post-suit-notice provision is not jurisdictional); Dallas County v. Coskey, 247 S.W.3d 753, 754-56 (Tex.App.-Dallas 2008, pet. denied) (concluding that requirement that notice be given thirty days after suit was filed is not statutory prerequisite and, therefore, not jurisdictional). By the very terms of subsection 361.321(c), the 30-day deadline for executing service of process begins after the suit has been filed. See Tex. Health & Safety Code Ann. § 361.321(c).
When construing a statute, courts must be mindful that there is a presumption against finding a statutory provision to be jurisdictional. City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75-76 (Tex.2000) (overruling line of cases holding that
In addition, a determination that service is not a jurisdictional requirement is consistent with the manner in which a trial court's jurisdiction is invoked. Under governing case law, filing a petition endows a trial court with subject-matter jurisdiction provided that the case involves a dispute that the trial court has authority to adjudicate. Hughes v. Atlantic Ref. Co., 424 S.W.2d 622, 625 (Tex.1968); see In re Alley, 1 S.W.3d 268, 271 (Tex.App.-Texarkana 1999, orig. proceeding) (explaining
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.
As mentioned above, TJFA also challenges the district court's alternative, nonjurisdictional 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.
For determinations regarding whether a statutory requirement is directory or mandatory, there is no "absolute test" that courts may apply. Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956). In general, statutes that use words like "shall" or "must" are construed as mandatory, see id. at 945; Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001); see also Tex. Gov't Code Ann. § 311.016 (West 2005) (explaining that when construing statutes, courts should construe word "must" as creating or recognizing condition precedent), but courts "have, in certain circumstances, construed" those terms as being directory rather than mandatory, Texas Mut. Ins. Co. v. Vista Cmty. Med. Ctr., L.L.P., 275 S.W.3d 538, 552 (Tex.App.-Austin 2008, no pet.); see Chisholm, 287 S.W.2d at 945. Statutory provisions that "are included for the purpose of promoting the proper, orderly and prompt conduct of business" are not generally construed as mandatory, Chisholm, 287 S.W.2d at 945, particularly when the failure to comply will not prejudice the rights of the interested parties, see Texas Dep't of Pub. Safety v. Dear, 999 S.W.2d 148, 152 (Tex.App.-Austin 1999, no pet.) (quoting State v. Fox, 133 S.W.2d 987, 990 (Tex.Civ.App.-Austin 1939, writ ref'd)). One factor that may weigh in favor of construing a statute that requires timely action as directory is if the statute does not specify consequences for failing to act by the statutory deadline. Chisholm, 287 S.W.2d at 945. Stated differently, "[i]f a provision requires that an act be performed within a certain time without any words restraining the act's performance after that time, the timing provision is usually directory." Wilkins, 47 S.W.3d at 495; see also Dear, 999 S.W.2d at 152 (explaining that if provision is directory and act is performed but not in time or manner indicated, act will be deemed sufficient provided that act accomplishes substantial purpose of statute). Accordingly, when a statute uses the word "must" to describe a requirement and also includes a penalty for noncompliance, "[t]he word `must' is given a mandatory meaning." Wilkins, 47 S.W.3d at 493. However, the absence of a penalty in the statute for failing to comply with a statutory requirement does not automatically compel a conclusion that a statute stating that an act "must" be accomplished is not mandatory. See Edwards Aquifer Auth. v. Chemical Lime, Ltd., 291 S.W.3d 392, 404 (Tex. 2009). Instead, "`[w]hen the statute is silent'" regarding the penalty for noncompliance, courts look to the statute's "`purpose for guidance.'" Id. (quoting Hines v. Hash, 843 S.W.2d 464, 468 (Tex.1992)); see Chisholm, 287 S.W.2d at 945 (stating that when determining whether provision is
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, TJFA argues that the deadline is designed to guarantee "that the case is diligently prosecuted" and, therefore, simply relates to "the proper, orderly and prompt conduct of business." See Chisholm, 287 S.W.2d at 945. Third, TJFA notes that the statutory provision has no explicit penalty for failing to comply with the deadline and does not expressly prohibit service of citation after the deadline, see Bruton, 256 S.W.3d at 349 (noting that statute requiring notice after suit was filed contained provision authorizing dismissal of appeal if notice was not timely made and if party files motion to dismiss), and argues that if the legislature had intended the service deadline to be a mandatory requirement, it could have specified that failing to comply will result in dismissal as it has in other statutory provisions, see, e.g., Tex. Loc. Gov't Code Ann. § 89.0041 (West 2008). Fourth, TJFA argues that "the lack of service within 30 days did not prejudice" the rights of the Commission because it received actual notice of the lawsuit on the day that it was filed and because service of citation was accomplished within a few days of the deadline.
For the reasons that follow, we disagree with TJFA. Although this is not dispositive, we note that the language of the statute at issue is written with mandatory language. In particular, the statute specifies that service of citation "must be accomplished not less than the 30th day after the date on which the petition is filed." Tex. Health & Safety Code Ann. § 361.321(c). Moreover, unlike other statutes in which the legislature has specified a deadline for filing a petition but chosen not to specify a service deadline, see, e.g., Tex. Loc. Gov't Code Ann. § 143.015(a) (West 2008) (specifying deadline for filing suit but providing no deadline for service), the legislature's decision to provide an explicit deadline must be afforded some significance, see Tex. Health & Safety Code Ann. § 361.321(c). When the legislature has not provided specific deadlines for service, courts have determined whether service of citation was properly performed in cases in which service was executed after the deadline for filing suit by considering whether the person filing suit exercised due diligence in executing service. See Gutierrez, 182 S.W.3d at 432-33. By providing an explicit deadline, the legislature has indicated its intention to foreclose the possibility of excusing delays between filing and executing service due to diligent efforts at service undertaken by plaintiffs.
More importantly, the legislature chose to include the service-of-citation deadline
Although TJFA correctly points out that the health and safety code provision does not specify any explicit penalty for failing to execute service within the 30-day deadline, the statute does not seem to contemplate judicial review of suits that do not comply with the deadline. See Wilkins, 47 S.W.3d at 495 (concluding that statute requiring filing of sworn complaint within time to allow for effective inspection was not mandatory because provision did not expressly require dismissal for failure to comply but also because statute explicitly contemplated that delay in filing may occur but case may proceed; in particular, statute said that Board may make findings regarding delay in filing and that trial court may consider those findings). The governing statute provides no option for extending the deadline or for excusing a failure to comply with the deadline and
Finally, although TJFA correctly points out that the statute is designed to allow for judicial review of determinations made by the Commission, the legislature curtailed this limited waiver of sovereign immunity by requiring that a suit for judicial review be filed within 30 days of a decision by the Commission and that service be executed within 30 days of filing suit. Cf. Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 198 (Tex.2004) (concluding that right to judicial review under administrative procedure act "provides a limited waiver of sovereign immunity"); see also id. at 172 (noting that in absence of agency action affecting vested property right or violating constitutional right, person may only seek judicial review of agency decision if statute provides right to judicial review). By coupling the right to judicial review with a requirement that suits be filed and that service be executed within short deadlines, the legislature has demonstrated its intent to promote the quick resolution of appeals of decisions by the Commission and to promote the finality of the Commission's actions. In light of the preceding and in light of the fact that courts are required to narrowly construe statutory waivers of sovereign immunity, see Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.2008), we must reject TJFA's assertion that the service deadline was merely included to promote "the proper, orderly and prompt conduct of business." Cf. Chemical Lime, 291 S.W.3d at 403 (explaining that enforcement of deadlines can sometimes lead to harsh results (quoting United States v. Locke, 471 U.S. 84, 100-01, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985))).
For all the reasons previously given, we conclude that the district court properly determined that the 30-day deadline for
In its final issue on appeal, TJFA challenges the portion of the district court's judgment granting BFI's counterclaim against TJFA. As mentioned above, the Commission ordered TJFA and BFI to each pay one-half of the costs for the administrative transcript, but TJFA did not cover its portion of the transcript costs ($6,564.42). Accordingly, BFI paid all of the transcript fees. During the appeal of the Commission's decision, BFI sought reimbursement for half of the transcript fees, and the district court ordered TJFA to pay the amount ordered by the Commission.
In challenging this portion of the district court's judgment, TJFA does not challenge the propriety of the Commission's decision to require it to pay part of the transcript costs or the amount of the costs. Instead, TJFA argues that because the district court erred by dismissing the suit, "the granting of BFI's counterclaim must be reversed and the matter remanded ... to be considered on the merits." In fact, although TJFA couches its concession in terms of its jurisdictional assertions summarized in the first issue, TJFA admits that if its appeal of the dismissal is unsuccessful, "BFI's indemnity claim would by necessity be granted."
As discussed previously, we conclude that the district court did not err by dismissing the suit. In light of our determination, we overrule TJFA's final issue as presented on appeal and express no further comment regarding the propriety of the district court's decision enforcing the portion of the Commission's order that required TJFA to pay half of the transcript fees.
We conclude that the 30-day deadline for executing service of citation under section
Concurring and Dissenting Opinion by Justice HENSON.
Concurring Opinion by Justice ROSE.
DIANE M. HENSON, Justice, concurring and dissenting.
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 majority's conclusion that the service deadline is mandatory. See Tex. 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.
A statutory provision is directory if it promotes the "proper, orderly, and prompt conduct of business." Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956). Conversely, courts construe a statutory provision as mandatory when the power or duty to which it relates is for the public good. Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex.1999). As the majority correctly points out, there is no "absolute test" to determine whether a statutory provision is mandatory or directory. See Chisholm, 287 S.W.2d at 945. 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. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 494 (Tex.2001); Texas Mut. Ins. Co. v. Vista Cmty. Med. Ctr., 275 S.W.3d 538, 552 (Tex.App.-Austin 2008, pet. denied). In light of these considerations, I would 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. 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 legislature's intent. See Texas Mut. Ins. Co., 275 S.W.3d at 552.
As the majority concedes, and I agree, the statute in this case is designed to allow for judicial review of determinations made by the Commission. I also agree that the legislature has simultaneously demonstrated an "intent to promote the quick resolution of appeals of decisions by the Commission and to promote the finality of the Commission's actions." However, the majority relies in part on the fact that the statute operates as a waiver of sovereign immunity, a jurisdictional issue, to conclude
The purpose of service of citation generally is to give the court jurisdiction over the parties and to provide notice to the defendant that it has been sued. TAC Americas, Inc. v. Boothe, 94 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.
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 majority's 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 Dep't 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 prejudiced 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 TJFA's failure to strictly comply.
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 plaintiff's failure to deliver notice of suit to county officials by mail, an express statutory requirement, did not require dismissal of the suit against the county.
As previously discussed, the purpose of the statute in this case is to allow for the review of Commission decisions, while the purpose of the service deadline set forth in subsection 361.321(c) is to ensure that the Commission receives prompt notice of the suit so that it may answer and prepare a defense. The statute does not indicate that termination of the plaintiff's substantive rights for late service is required or that the purpose of the service deadline is best served by such termination. See State v. $435,000.00, 842 S.W.2d 642, 644 (Tex.1992) ("If the Legislature had intended dismissal to be the consequence of a failure to hear a forfeiture case within the prescribed period, it could easily have said so...."). Instead, like Roccaforte, the substantial purpose of the statute may be accomplished without requiring automatic dismissal of the suit.
It is undisputed that TJFA timely filed suit for judicial review and that notice of the suit was e-mailed to the Commission the same day. Thus, the Commission had actual notice of TJFA's suit, enabling it to answer and 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
Under these circumstances, I would conclude that TJFA substantially complied with the service deadline set forth in subsection 361.321(c), such that the substantial purpose of the statutory deadline was met and the Commission was not prejudiced as a result of the delay. See Roccaforte, 341 S.W.3d at 926. Accordingly, I would reverse the trial court's judgment granting the Commission's motion to dismiss and remand this cause to the trial court for further proceedings consistent with this 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,"
Accordingly, I respectfully concur in the opinion and the judgment.
Although section 311.034 of the government code provision was not in effect at the time we made our decision in Sierra Club, we believe our conclusion in that case warrants mentioning in the current case. Moreover, although the supreme court may have characterized the service-of-citation requirements as prerequisites, the supreme court made no determination regarding whether those requirements were jurisdictional in nature. Instead, the supreme court concluded that the requirements were met in Sierra Club II and, therefore, "did not reach the jurisdictional issue addressed by" this Court. Id. at 814-15. Accordingly, the supreme court made no binding determination regarding whether the failure to comply with the service-of-citation requirements in subsection 361.321(c) deprives a trial court of jurisdiction, and its description of the requirements in subsection 361.321(c) is dicta. See Traveler's Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848, 852 n. 3 (Tex. 1995) (explaining that dicta does not create binding precedent).
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 nongovernmental defendants, plaintiffs should have little difficulty locating and serving the Commission. Accordingly, it is not entirely clear that due diligence considerations should apply here. Regardless, as discussed above, we believe that the legislature's decision to provide an explicit deadline by which service of citation must be executed foreclosed due-diligence considerations and instead imposed an absolute deadline that a party must comply with in order to maintain his suit. Moreover, although TJFA sent a copy of its petition to the Commission and thereby gave the Commission notice of the suit, providing notice is not the same as executing service of citation. See Sierra Club II, 70 S.W.3d at 813. Executing service of citation is more formal than merely providing notice, see Tex.R. Civ. P. 99-119 (specifying requirements for service); see also id. R. 21a (stating that every notice required by rules of civil procedure "other than the citation ... may be served by delivering a copy to the party to be served"), and is the process by which a party is informed that he has been sued and that he is required to make an appearance "and answer the opposing party's claims," Sierra Club II, 70 S.W.3d at 813. Accordingly, we do not believe that TJFA's actions could be deemed as complying with the purpose of the statute.
We believe that TJFA's reliance on Roccaforte is misplaced. That case involved a statute requiring that notice be given, but the statute at issue in this case relates to execution of service. As discussed earlier, providing notice is not equivalent to executing service, and the requirements for executing service are more formal than merely providing notice. See Sierra Club II, 70 S.W.3d at 813; cf. In the Interest of J.T.O., No. 04-07-00241-CV, 2008 WL 139295, at *1, 2008 Tex.App. LEXIS 303, at *2 (Tex.App.-San Antonio Jan. 16, 2008, no pet.) (mem. op.) (explaining that rules relating to service of citation are mandatory and that failure to comply with rules renders service ineffective). Accordingly, actions that might be deemed substantially compliant with a notice provision will not necessarily be sufficient to comply with the requirements of a provision governing service of citation.
