Supreme Court reverses, remands decision in Texas Clean Air Act case over service deadline

By Robert Davis | Apr 4, 2018

AUSTIN – The Texas Supreme Court reversed and remanded a decision from the 1st District Court of Appeals that dismissed an appeal filed by AC Interests LP against a ruling by the Texas Commission on Environmental Quality (TCEQ) after the service deadline required by the Texas Clean Air Act passed.

The court argued that it does not "understand the Act to require dismissal under the circumstances" of the case. 

According to the opinion, in 2013, AC Interests petitioned the TCEQ to certify Emissions Reduction Credits (ERC) under the Commission's rules to complete a job. The TCEQ denied its request, causing AC Interests to seek judicial review.

The Travis County District Court first heard the case in December 2014. But, TCEQ was not served until 58 days after the court heard the case. The court then dismissed the petition. 

AC Interests appealed the case to the 1st District Court, which subsequently affirmed the trial court's decision.

The Supreme Court agreed that the Clean Air Act controlled AC Interests' request for review, but "the 30-day service requirement was therefore applicable."

The Supreme Court also noted in its opinion that the service requirement was not jurisdictional. This means that deeming it a "condition precedent" for dismissal "does not resolve the issue of what a court is to do here."

TCEQ claimed that the service requirement is mandatory and therefore constitutes a dismissal of AC Interests' claims. However, that argument misses the point, according to the opinion, because it does not resolve what the consequence is for a late service.

The dissenting opinion filed by Justice Jeffrey Boyd argued that "there is no principled reason to construe the petition deadline as a condition precedent to appeal but not to do so for the service deadline," and cited multiple subsections of the Clean Air Act.

The majority opinion disagreed, citing linkages between the subsections that made the conclusion of allowing the appeal "logically necessary given that you must file a petition in order to appeal."

Justice John P. Devine gave the majority opinion of the court on March 29 with Chief Justice Nathan Hecht, and Justices Paul Green, Eva Guzman, Debra Lehrmann, and Jeff Brown concurring. 

Justice Jeffrey Boyd and Phil Johnson dissented. 

Justice Jimmy Blacklock did not participate in the decision. 

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