Cause No. 03-11-00277-CV

IN THE COURT OF APPEALSFOR THE THIRD JUDICIAL DISTRICT

AUSTIN, TEXAS

NORTHEAST NEIGHBORS COALITIONand TJFA, L.P.,

Appellants,

v.

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY andBFI WASTE SYSTEMS OF NORTH AMERICA, INC.,

Appellees.

On Appeal from the 126th District Court of Travis County, TexasHon. John K. Dietz, Judge PresidingTrial Court No. D-1-GN-09-004113

INITIAL BRIEF OF APPELLANT TJFA, L.P.

James A. HemphillState Bar No. 00787674GRAVES DOUGHERTY HEARON

& MOODY, PC401 Congress Ave., Suite 2200Austin, Texas 78701512-480-5762512-536-9907 (fax)

Erich M. BirchState Bar No. 02328395Angela K. MoormanState Bar No. 24007700BIRCH, BECKER & MOORMAN, LLP4601 Spicewood Springs RoadBuilding 4, Suite 101Austin, Texas 78759512-349-9300 (phone)512-349-9303 (fax)

ATTORNEYS FOR APPELLANT TJFA, L.P.July 5, 2011

IDENTITY OF PARTIES AND COUNSEL

Plaintiff/Appellant Attorneys for Plaintiff/Appellant

TJFA, L.P. James A. HemphillGRAVES, DOUGHERTY, HEARON

& MOODY, P.C.401 Congress Avenue, Suite 2200Austin, Texas 78701

Erich M. BirchState Bar No. 02328395Angela K. MoormanState Bar No. 24007700BIRCH, BECKER & MOORMAN, LLP4601 Spicewood Springs RoadBuilding 4, Suite 101Austin, Texas 78759

Defendants/Appellees Attorneys for Defendants/Appellees

Texas Commission on Greg AbbottEnvironmental Quality C. Andrew Weber

David S. MoralesBarbara B. DeaneDavid PreisterCynthia WoelkNancy E. OlingerBrian E. Berwick OFFICE OF ATTORNEY GENERAL

ENVIRONMENTAL PROTECTION SECTION

P.O. Box 12548, Capitol StationAustin, Texas 78711-2548

BFI Waste Systems of Paul G. GosselinkNorth America, Inc. LLOYD GOSSELINK ROCHELLE &(Intervenor) TOWNSEND, P.C.

816 Congress Ave., Suite 1900Austin, Texas 78701

ii

TABLE OF CONTENTSpage

IDENTITY OF PARTIES AND COUNSEL....................................................................... i

TABLE OF CONTENTS .................................................................................................... ii

TABLE OF AUTHORITIES.............................................................................................. iv

ABBREVIATIONS AND RECORD CITATIONS........................................................... vi

STATEMENT OF THE CASE .........................................................................................vii

STATEMENT REGARDING ORAL ARGUMENT ......................................................... x

ISSUES PRESENTED ....................................................................................................... xi

STATEMENT OF FACTS.................................................................................................. 1

1. The administrative proceedings .................................................................... 1

2. The District Court judicial review lawsuit .................................................... 1

3. The hearing on the Motion to Strike ............................................................. 2

SUMMARY OF ARGUMENT........................................................................................... 5

ARGUMENT AND AUTHORITIES ................................................................................. 6

I. Standard of Review: This Case Presents Legal Issues ............................................ 6

II. The District Court Had Subject-Matter Jurisdiction over TJFA’s Separately-Filed Judicial Review Suit; Thus, the District Court’s Grant of the Motion to Strike Intervention Was Error............................................................ 7

A. The 30-day service timetable is not jurisdictional. ....................................... 8

B. Service 41 days after filing did not justify dismissal .................................. 10

III. Even If TJFA’s Separately-Filed Case Was Properly Dismissed, Intervention Was Still Proper. ................................................................................ 12

A. TJFA has a justiciable interest, thus making intervention proper ............... 12

iii

B. TJFA meets the three-part Guaranty Federal test, and thus can intervene as a matter of right....................................................................... 14

C. Even if TJFA does not have a right to intervene, the District Court has the discretion to allow intervention ...................................................... 16

CONCLUSION AND PRAYER....................................................................................... 19

CERTIFICATE OF SERVICE ..............................................................................................21

INDEX TO APPENDIX.........................................................................................................22

iv

TABLE OF AUTHORITIES

CASES: page

Antonov v. Walters,168 S.W.3d 901 (Tex. App. – Fort Worth 2005, pet. denied)................................ 13

Ballesteros v. Nueces County,286 S.W.3d 566 (Tex. App. – Corpus Christi 2009, no pet.)................................... 9

Chisholm v. Bewley Mills,155 Tex. 400, 403, 287 S.W.2d 943, 945 (Tex. 1956)........................................... 11

County of Bexar v. Bruton,256 S.W.3d 345 (Tex. App. – San Antonio 2008, no pet.) ...................................... 9

Dallas County v. Coskey,247 S.W.3d 753 (Tex. App. – Dallas 2008, pet. denied) ......................................... 9

El Paso County v. Alvarado,290 S.W.3d 895 (Tex. App. – El Paso 2009, no pet.) .............................................. 9

Galveston Bay Conservation & Preservation Ass’n v. Texas Air Control Board,586 S.W.2d 634 (Tex. Civ. App. – Austin 1979, writ ref’d n.r.e.) ...................16-18

Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652 (Tex. 1990) ...................................................................7, 14-15, 17

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001) ................................................................................... 11

In re Union Carbide Corp., 273 S.W.3d 152 (Tex. 2008) .................................................................................. 12

Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68 (Tex. App. – Fort Worth 2003, no pet.) ........................................ 13

McCord v. Watts, 777 S.W.2d 809 (Tex. App. – Austin 1989, no writ) ............................................. 12

Roccaforte v. Jefferson County, --- S.W.3d ---, 2011 WL 1661445 (Tex. April 29, 2011) ...................................8-11

v

Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex. App. – Austin 2008), rev’d on other grounds, 309 S.W.3d 927 (Tex. 2010) ............................................. 9

Southwestern Advertising Co. v. Stubbs, 89 S.W.2d 799 (Tex. Civ. App. – Dallas 1935, writ dism’d)................................ 13

Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) .................................................................................... 6

Texas Dept. of Public Safety v. Dear, 999 S.W.2d 148 (Tex. App. – Austin 1999, no pet.).............................................. 11

Texas Mut. Ins. Co. v. Vista Community Medical Center, LLP, 275 S.W.3d 538 (Tex. App. – Austin 2008, pet. denied) ....................................... 11

Zeifman v. Michels, 229 S.W.3d 460 (Tex. App. – Austin 2007, no pet.)........................... 6-7, 12-14, 17

STATUTES:

TEX. GOV’T CODE ANN. § 311.034 .......................................................................xi, 3, 8, 9

TEX. HEALTH & SAFETY CODE ANN. § 361.321 .......................................................xi, 3, 8

TEX. LOC. GOV’T CODE ANN. § 89.0041 ............................................................................ 9

vi

ABBREVIATIONS AND RECORD CITATIONS

The following abbreviations and notations are used in this Brief:

RR __ References to the Reporter’s Record of the hearing on the Motion to Strike Intervention held on May 18, 2010. The citation to RR will be followed by the page(s) being cited, e.g. RR 4-6.

CR __ References to the one-volume Clerk’s Record. The citation to CR will be followed by the page(s) being cited, e.g. CR 154-55.

Apdx. tab __ References to the Appendix to the Brief of Appellant.

TCEQ Appellee Texas Commission on Environmental Quality.

BFI Appellee BFI Waste Systems of North America, Inc.

vii

STATEMENT OF THE CASE

TJFA, L.P. appeals the striking of its plea in intervention by the District Court.

The case below was initially brought by Northeast Neighbors Coalition (NNC), and was

an appeal of an order by Appellee Texas Commission on Environmental Quality (TCEQ)

granting the application of Appellee BFI Waste Systems of North America, Inc. (BFI) for

an amendment to expand its municipal solid waste landfill permit for the Sunset Farms

Landfill, on the east edge of Austin just off Highway 290. TJFA owns land near Sunset

Farms and was one of multiple parties that opposed BFI’s expansion request at the

TCEQ.

The TCEQ granted BFI’s expansion application. NNC, TJFA and others moved

for rehearing at the TCEQ, which motions were overruled by operation of law.

Northeast Neighbors Coalition timely filed the instant judicial review appeal in

District Court on December 4, 2009. CR 3-11. TJFA had filed its own, separate judicial

review appeal from the same TCEQ order on December 1, 2009, but the TCEQ filed a

plea to the jurisdiction claiming untimely service in that case. TJFA then filed its Plea in

Intervention in NNC’s case on February 9, 2010 (which was coupled with a motion to

consolidate TJFA’s judicial review appeal with NNC’s). CR 16-28. BFI also intervened,

on February 10, 2010. CR 49-52.

BFI, after intervening itself, filed a motion to strike TJFA’s intervention on May

14, 2010. CR 90-105. BFI’s motion to strike was premised on the trial court first

dismissing TJFA’s separately-filed judicial review suit on the ground that service of that

suit on the TCEQ was untimely. See CR 93 (arguing that TJFA “did not properly and

viii

timely perfect its appeal” in its separately-filed suit, and thus should be denied the right to

intervene in the case now on appeal). The TCEQ did not file a motion to strike TJFA’s

intervention in the NNC case.

The District Court, presided over by the Honorable John K. Dietz, held a joint

hearing on May 18, 2010 on the TCEQ’s plea to the jurisdiction in the case filed by TJFA

and BFI’s motion to strike TJFA’s intervention in the case filed by NNC. At the

conclusion of the argument on the jurisdictional issue, the Court indicated that it would

grant the TCEQ’s plea to the jurisdiction and thus would dismiss TJFA’s separately-filed

judicial review suit. RR at 37-39.

The District Court’s grant of the TCEQ’s plea to the jurisdiction in the separately-

filed TJFA case was a final judgment and has been appealed to this Court. The briefing

in that case – TJFA, L.P. v. TCEQ, Cause No. 03-10-00677-CV – has been completed.

In the May 18, 2010 hearing, after deciding the jurisdictional issue, the District

Court then heard argument on BFI’s motion to strike TJFA’s intervention in the case now

on appeal (the NNC) case, and indicated that he would grant the motion and strike the

intervention, for the same reason that the Court granted the plea to the jurisdiction in

TFJA’s separately-filed judicial review case. RR at 56-57. The ruling was reflected in a

September 9, 2010 Order. CR 122-23; Apdx. tab 1.

The trial court’s striking of TJFA’s plea in intervention was a nonappealable

interlocutory order. The case proceeded on NNC’s claims. A hearing on the merits was

held on March 23, 2011. The District Court ruled in favor of the TCEQ and BFI via an

order of March 30, 2011. CR 522; Apdx. tab 2. This was a final judgment. TJFA and

ix

NNC timely filed notices of appeal on April 28, 2011. CR 523-25, 526-27. TJFA now

files its brief, urging the Court to overturn the denial of its plea in intervention and

remand for a merits hearing. NNC will file a separate brief on the merits of the issues it

raised in the District Court.

x

STATEMENT REGARDING ORAL ARGUMENT

The resolution of this case depends heavily on this Court’s resolution of the appeal

in TJFA’s separately-filed judicial review case (TJFA, L.P. v. TCEQ, Cause No. 03-10-

00677-CV), which has been fully briefed. If the Court rules in TJFA’s favor in that case,

oral argument in this case is not necessary; a per curiam reversal and remand would be

proper.

If the Court does not rule in TJFA’s favor in Cause No. 03-10-00677-CV, then

TJFA respectfully requests oral argument in this case. Under those circumstances, this

case would raise important questions about the continued viability of intervention as a

matter of right for parties who have a justiciable interest in a suit filed by a third party but

who have not filed their own suit.

xi

ISSUES PRESENTED

I. Did the District Court err in finding that the 30-day post-filing service-of-process timetable in Section 361.321 of the Health & Safety Code is a “statutory prerequisite to a suit” under Section 311.034 of the Texas Government Code, and thus that a party who filed its own suit but did not serve process within 30 days of filing could not intervene in another suit raising exactly the same issue?

II. If the District Court was correct in finding the 30-day post-filing service-of-process timetable to be both jurisdictional and mandatory, did the Court err by denying a party the right to intervene in an administrative judicial review appeal when the party fully exhausted all administrative remedies and timely filed its own judicial review suit?

1

STATEMENT OF FACTS

The facts of this appeal are largely identical to those in TJFA, L.P. v. TCEQ,

Cause No. 03-10-00677-CV, which has been fully briefed before this Court. Here, TJFA

will present a summary of the facts that are set forth fully in TJFA’s briefing in Cause

No. 03-10-00677-CV, and will set forth in detail those facts that are unique to the instant

case.

1. The administrative proceedings.

BFI applied to the TCEQ for an amendment to expand its municipal solid waste

landfill permit for the Sunset Farms Landfill. The landfill is at the intersection of Blue

Goose Road and Giles Lane on the east edge of Austin, just north of Highway 290. TJFA

owns land adjacent to the landfill and was one of multiple parties (including its co-

appellant here, Northeast Neighbors Coalition) that opposed the expansion application.

The TCEQ ruled in BFI’s favor. TJFA and NNC both filed motions for rehearing

in the administrative proceeding – a prerequisite for a judicial review appeal – which

were denied by operation of law.

2. The District Court judicial review lawsuit.

TJFA timely filed its own judicial review appeal in District Court on December 1,

2009.1 NNC challenged the same TCEQ ruling in favor of BFI by filing a separate

judicial review appeal on December 4, 2009.2 Both cases were assigned to the Honorable

John K. Dietz.

1 CR 29-48.2 CR 3-11.

2

On February 9, 2010, TJFA filed a motion to consolidate the two judicial review

appeals, or in the alternative a motion to intervene in NNC’s judicial review appeal, so

that there would be only one District Court proceeding challenging the TCEQ’s ruling in

BFI’s favor.3

Two days later, BFI intervened in this case.4 Neither TJFA nor NNC objected to

the intervention. More than three months after BFI intervened, BFI moved to strike

TJFA’s intervention.5 The Motion to Strike was dependent upon the TCEQ’s Plea to the

Jurisdiction in TJFA’s separately-filed judicial review case. BFI argued that TJFA

should be denied intervention in this case because TJFA, in its separately-filed case, had

not served the TCEQ with process within 30 days of filing.6 BFI maintained that because

TJFA allegedly had not successfully perfected its own judicial review appeal, it could not

intervene in NNC’s judicial review appeal because TJFA lacked a justiciable interest –

despite the uncontested facts that TJFA was a party to the administrative proceeding, had

exhausted all its administrative remedies, and had timely filed its own judicial review

suit.

3. The hearing on the Motion to Strike.

The District Court heard argument, on May 18, 2010, on both BFI’s Motion to

Strike in the instant case, and on the TCEQ’s Plea to the Jurisdiction in TJFA’s

separately-filed case. The TCEQ’s Plea to the Jurisdiction argued that TJFA’s

3 CR 16-48.4 CR 49-52.5 CR 90-105.6 CR 90-91.

3

separately-filed case should be dismissed because the TCEQ was not formally served

with process within 30 days of the case’s filing. The TCEQ argued that the 30-day post-

filing service timeline in Section 361.321 of the Health & Safety Code was jurisdictional

under Section 311.034 of the Government Code, which provides that “[s]tatutory

prerequisites to a suit, including the provision of notice, are jurisdictional requirements in

all suits against a governmental entity.”

At the hearing, the District Court stated that it would find the 30-day post-filing

service provision to be a “statutory prerequisite to a suit” and thus would grant the

TCEQ’s Plea to the Jurisdiction.7 That ruling is the subject of the appeal in TJFA, L.P. v.

TCEQ, Cause No. 03-10-00677-CV.

The District Court then turned to BFI’s Motion to Strike TJFA’s intervention in

this case, which was specifically based on the same ground as the TCEQ’s Plea to the

Jurisdiction. In essence, BFI argued that if the District Court lacked jurisdiction over

TJFA’s separately-filed judicial review case (due to TJFA’s alleged failure to timely

serve the TCEQ), then TJFA lacked any justiciable interest in the appeal of the TCEQ’s

order – even though it was uncontested that TJFA had been a party to the administrative

proceeding, had exhausted all its administrative remedies, and had timely filed its own

judicial review suit. As BFI’s counsel argued, “[y]ou have to actually have perfected

your appeal” in order to intervene in another, separately-filed judicial review appeal of

the same administrative order.8 BFI argued to the District Court that “[i]n light of the

7 RR 37-39.8 RR 48.

4

ruling that you’ve made” granting the TCEQ’s Plea to the Jurisdiction in the separate

TJFA case, TJFA “no longer has a justiciable interest” in the NNC appeal.9

At the conclusion of the hearing, the District Court agreed with BFI’s argument,

ruling that because TJFA had not served the TCEQ within 30 days of filing its separate

lawsuit, TJFA had no justiciable interest and could not intervene in the NNC lawsuit.10

The District Court’s Order set forth the rationale for striking the intervention:

Since TJFA’s suit was dismissed because of TJFA’s failure to comply with the statutory prerequisite to suit, TJFA cannot now challenge the TCEQ order by intervening in this lawsuit and TJFA does not otherwise meet the test for intervention.11

The case went forward with NNC’s merits challenge to the TCEQ’s administrative

ruling, without TJFA’s participation. The District Court entered final judgment in the

TCEQ’s favor on March 30, 2011. This appeal followed.

9 RR 54.10 RR 56-57.11 CR 122-23.

5

SUMMARY OF ARGUMENT

Because the District Court erred in granting the TCEQ’s Plea to the Jurisdiction in

TJFA’s separately-filed judicial review suit, and because BFI’s Motion to Strike was

specifically based on the same ground as the Plea to the Jurisdiction, the District Court’s

granting of the Motion to Strike must be reversed. In its Plea to the Jurisdiction, the

TCEQ argued that if it is not served with process within 30 days after a judicial review

suit is filed, the District Court lacks jurisdiction because a “statutory prerequisite to suit”

has not been fulfilled. The TCEQ’s position is incorrect; post-filing timetables are not

prerequisites to suit, as many Courts of Appeals (including this Court) have held, and as

the Texas Supreme Court has recently confirmed. Because BFI’s Motion to Strike was

granted for the same erroneous reason as the Plea to the Jurisdiction, the striking of

TJFA’s intervention should be reversed, and this case remanded for a hearing on the

merits of TJFA’s judicial review appeal in the District Court.

If this Court holds that the dismissal of TJFA’s separately-filed lawsuit was

proper, reversal of the striking of TJFA’s intervention in the instant case was still error

requiring reversal and remand. TJFA had a justiciable interest at the time it filed its Plea

in Intervention, and that interest was not retroactively extinguished by the District

Court’s grant of the Plea to the Jurisdiction in a separate case. TJFA participated fully in

the administrative proceedings, exhausted all its administrative remedies, and timely filed

its own judicial review appeal of the TCEQ’s order. At the very least, the District Court

had the discretion to allow intervention; the court’s conclusion otherwise was error.

6

ARGUMENT AND AUTHORITIES

I. Standard of Review: This Case Presents Legal Issues.

The prefatory issue here is whether the District Court had subject-matter

jurisdiction over TJFA’s separately-filed judicial review suit. This issue has been briefed

in the appeal of that case, TJFA, L.P. v. TCEQ, Cause No. 03-10-00677-CV. It is also an

issue in this case because the District Court’s Order that is being appealed here relied

explicitly on its jurisdictional ruling in TJFA’s separate case. Whether a court has

subject-matter jurisdiction is a question of law reviewed de novo. Texas Dept. of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

If this Court rules in TJFA’s favor in Cause No. 03-10-00677-CV, it should issue a

per curiam reversal and remand in this case.

If this Court does not rule in TJFA’s favor in Cause No. 03-10-00677-CV, the

Court is presented with the question of whether TJFA had a legal right to intervene

despite not serving the TCEQ within 30 days of filing its separate judicial review lawsuit.

That analysis would take the following steps:

1. Did TJFA allege a justiciable interest? As a threshold requirement of

intervention, an intervenor must allege that it has a justiciable interest in the case in

which it seeks to intervene. Zeifman v. Michels, 229 S.W.3d 460, 464 (Tex. App. –

Austin 2007, no pet.). Whether such an interest has been alleged is a question of law. Id.

The District Court found that TJFA had not alleged a justiciable interest due to the

dismissal of TJFA’s separate judicial review suit for want of jurisdiction.

7

2. Was TJFA entitled to intervene as a matter of law? If TJFA did allege a

justiciable interest, it was entitled to intervene as a matter of law if it met the three-part

test of Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652 (Tex.

1990). In other words, a court abuses its discretion if it fails to allow intervention when

the three-part test is met. Zeifman v. Michels, 229 S.W.3d at 466 (failure to allow

intervention when Guaranty Federal’s three-part test is met is one circumstance in which

a court’s striking of intervention is an abuse of discretion).

3. If TJFA was not entitled to intervene as a matter of law, did the District

Court have discretion to allow intervention? The District Court accepted BFI’s argument

that TJFA lacked a justiciable interest, thus finding that the Court had no discretion to

allow intervention. If this Court finds that TJFA did in fact have such an interest, but did

not as a matter of law meet the three-part test for intervention as a matter of right, then

the striking of the intervention should be reversed and the cause remanded to the District

Court, with instructions that the District Court may allow intervention in its discretion.

Zeifman v. Michels, 229 S.W.3d at 465 (whether to allow intervention is generally a

matter of the trial court’s discretion).

Here, there are no disputes regarding any facts. This appeal raises primarily legal

issues that are reviewed de novo.

II. The District Court Had Subject-Matter Jurisdiction over TJFA’s Separately-Filed Judicial Review Suit; Thus, the District Court’s Grant of the Motion to Strike Intervention Was Error.

The District Court’s striking of TJFA’s intervention in this case was explicitly

premised on its finding that it did not have subject-matter jurisdiction over TJFA’s

8

separately-filed judicial review suit. That finding was error, and requires the reversal of

the District Court’s grant of BFI’s Motion to Strike.

This issue is a focus of the briefing in TJFA’s appeal in its separately-filed suit,

TJFA, L.P. v. TCEQ, Cause No. 03-10-00677-CV, which has been fully briefed before

this Court. TJFA will not here duplicate that briefing, but will summarize its

jurisdictional argument due to its relevance to the ruling here on appeal.

A. The 30-day service timetable is not jurisdictional.

Section 361.321 of the Health & Safety Code provides that when a judicial review

suit challenging an agency decision is filed in District Court:

Service of citation must be accomplished not later than the 30th day after the date on which the petition is filed.12

The District Court’s jurisdictional ruling in TJFA’s judicial review suit was

premised on a finding that the 30-day post-filing service-of-process timetable in Section

361.321 was jurisdictional because it was a “statutory prerequisite to suit” under Section

311.034 of the Government Code. That statute, in relevant part, provides:

Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.13

A requirement that something be done after suit is filed is not a “statutory

prerequisite to a suit.” The Texas Supreme Court has recently and squarely addressed

this issue. In Roccaforte v. Jefferson County, --- S.W.3d ---, 2011 WL 1661445 (Tex.

April 29, 2011), the Court held that a statutory requirement that a plaintiff give notice to

12 TEX. HEALTH & SAFETY CODE § 361.321.13 TEX. GOVT. CODE § 311.034.

9

certain government officials after filing suit was not a “statutory prerequisite to a suit”

and thus was not jurisdictional under Section 311.034.

In Roccaforte, the relevant statute required that a plaintiff “shall” provide notice of

a lawsuit to the county judge and county or district attorney; that the notice “must” be

delivered by certified or registered mail; and that a court “shall” dismiss the suit upon

motion if the plaintiff “does not give notice as required by this section.” TEX. LOCAL

GOV’T CODE § 89.0041 (emphases added). Roccaforte did not give the required notice.

He provided no notice at all to the district attorney. He also did not send notice via

certified or registered mail to the county judge, though the judge was personally served

with process. Id. at *1.

Because the notice requirement does not attach until after suit is filed, the

requirement was found not to be jurisdictional under Section 311.034 of the Government

Code. “Section 311.034 applies to prerequisites to suit, not notice requirements that can

be satisfied only after suit is filed.” Id. at *5 (emphasis in original). In so holding, the

Supreme Court agreed with the holdings of multiple Courts of Appeals – including this

Court – that post-filing requirements are not “prerequisites to suit.”14

Because the District Court erred in finding the post-filing service-of-process

timeline to be jurisdictional, and because this was the basis for the Motion to Strike that

was granted by the District Court, that grant must be reversed.

14 See, e.g., Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex. App. – Austin 2008), rev’d on other grounds, 309 S.W.3d 927 (Tex. 2010); Dallas County v. Coskey, 247 S.W.3d 753, 755-56 (Tex. App. – Dallas 2008, pet. denied); El Paso County v. Alvarado, 290 S.W.3d 895, 898 (Tex. App. – El Paso 2009, no pet.); County of Bexar v. Bruton, 256 S.W.3d 345, 349 (Tex. App. – San Antonio 2008, no pet.); Ballesteros v. Nueces County, 286 S.W.3d 566, 570 (Tex. App. – Corpus Christi 2009, no pet.).

10

B. Service 41 days after filing did not justify dismissal.

Though BFI only moved to strike the intervention on the ground that TJFA had no

justiciable interest due to lack of subject-matter jurisdiction, the District Court’s Order

did recite that “TJFA does not otherwise meet the test for intervention.”15 BFI cannot

defend the Motion to Strike on the alternate ground that the 30-day service-of-process

timetable is a requirement to maintaining suit, for at least two reasons: first, BFI did not

include that ground in its motion to strike; and second, the 30-day timetable is not a

requirement to maintaining suit. This second issue, again, has been briefed extensively in

the appeal of TJFA’s separately-filed case. Here, TJFA will provide only a summary of

its grounds.

This issue, too, is controlled by the Supreme Court’s opinion in Roccaforte. In

that case, the plaintiff did not strictly comply with the service requirement, and the statute

at issue (unlike the statute here) explicitly provided for dismissal in the event of non-

compliance. Even in the face of such language, the Supreme Court held that dismissal is

improper when the plaintiff substantially complied in a manner that served the purpose of

the statute. Although the Roccaforte plaintiff did not send the required notice, it was

undisputed that both the county judge and district attorney had prompt actual knowledge

of the suit; the Supreme Court held that this served the purpose of the statute (ensuring

that public officials are made aware of the case so they may answer and defend).

Roccaforte, 2011 WL 1661445 at *6.

15 CR 123.

11

In its separately-filed judicial review case, TJFA substantially complied with the

service timeline by (1) hand-delivering a copy of the lawsuit to the TCEQ on the same

day it was filed, and (2) effecting formal service of process the next business day after it

learned (42 days after filing) that service had not yet been made due to a

misunderstanding by counsel and an error by the court clerk. The purposes of the statute

– notice to the TCEQ that suit had been filed and promotion of the orderly disposition of

cases – were completely fulfilled. If dismissal was not proper in Roccaforte – where the

statute specifically provided the court “shall” dismiss for noncompliance – then it

certainly was not proper in the instant case, where the statute has no such noncompliance

penalty.

Thus, the 30-day service-of-process timeline at issue in TJFA’s separately-filed

case is not “mandatory” (a requisite for maintain suit), but rather “directory” (one that

directs, but does not mandate, performance within the specified time period; see, e.g.,

Chisholm v. Bewley Mills, 155 Tex. 400, 403, 287 S.W.2d 943, 945 (Tex. 1956); Texas

Mut. Ins. Co. v. Vista Community Medical Center, LLP, 275 S.W.3d 538, 552 (Tex. App.

– Austin 2008, pet. denied); Texas Dept. of Public Safety v. Dear, 999 S.W.2d 148, 152

(Tex. App. – Austin 1999, no pet.)). This is particularly true because the statute has

absolutely no noncompliance penalty for service after 30 days. See, e.g., Helena Chem.

Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001).

BFI cannot defend the District Court’s erroneous holding that “TJFA does not

otherwise meet the test for intervention” by arguing that service of process after 30 days

required dismissal of TJFA’s separately-filed judicial review case.

12

III. Even If TJFA’s Separately-Filed Case Was Properly Dismissed, Intervention Was Still Proper.

Even if this Court holds that the dismissal of TJFA’s separately-filed judicial

review case was proper, on jurisdictional grounds or otherwise, TJFA retains a justiciable

interest in NNC’s judicial review suit and thus is entitled to intervene.

A. TJFA has a justiciable interest, thus making intervention proper.

An intervenor must have a justiciable interest in a controversy to sustain its

intervention. Zeifman v. Michels, 229 S.W.3d 460, 464 (Tex. App. – Austin 2007, no

pet.) The intervenor’s interest “must be such that if the original action had never been

commenced, and he had first brought it as the sole plaintiff, he would have been entitled

to recover in his own name to the extent at least of a part of the relief sought.” In re

Union Carbide Corp., 273 S.W.3d 152, 155 (Tex. 2008). In determining whether an

intervenor has a justiciable interest, a court does not determine whether the intervenor

would be successful on the merits, but rather considers “the facts alleged in the petition in

intervention … along with the allegations of fact set forth in the pleadings of the other

parties.” Zeifman v. Michels, 229 S.W.3d at 464. The question is whether the intervenor

alleged a justiciable interest. “The petition's sufficiency is tested by its allegations of fact

on which the right to intervene depends, and the court may strike the petition if no

sufficient interest is alleged.” McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App. –

Austin 1989, no writ) (emphasis added).

13

In the District Court hearing on its Motion to Strike, BFI first agreed that the court

had discretion to allow intervention.16 BFI then changed course and argued that “[i]n

light of the ruling you’ve made” granting the TCEQ’s Plea to the Jurisdiction in TJFA’s

separately-filed judicial review suit, “this party no longer has a justiciable interest.”17

Even if the District Court’s grant of the Plea to the Jurisdiction was correct (which it was

not), the granting of the plea did not extinguish TJFA’s justiciable interest in NNC’s

judicial review suit.

“A party has a justiciable interest in a lawsuit, and thus a right to intervene, when

his interests will be affected by the litigation.” Law Offices of Windle Turley, P.C. v.

Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App. – Fort Worth 2003, no pet.). A justiciable

interest can exist even if there is a procedural obstacle to the intervenor filing its own

lawsuit. See, e.g., Antonov v. Walters, 168 S.W.3d 901, 906-07 (Tex. App. – Fort Worth

2005, pet. denied) (trustee retained justiciable interest in case and could intervene even

after a jury verdict, even though trustee could not have brought suit at the time of

intervention because the statute of limitations had run); Southwestern Advertising Co. v.

Stubbs, 89 S.W.2d 799, 801 (Tex. Civ. App. – Dallas 1935, writ dism’d) (intervention

allowed “even though it would be barred if set up in a separate action by the intervener”).

In any event, TJFA did file its own lawsuit, and at the time its Plea in Intervention was

filed, that lawsuit was still pending. Subsequent events do not extinguish a justiciable

16 RR 50.17 RR 54.

14

interest that existed at the time a plea in intervention is filed. Zeifman v. Michels, 229

S.W.3d at 468.

TJFA had a justiciable interest that was not extinguished by the grant of the Plea

to the Jurisdiction, thus providing a basis for intervention.

B. TJFA meets the three-part Guaranty Federal test, and thus can intervene as a matter of right.

When an intervenor has a justiciable interest, it is typically a matter of the trial

court’s discretion as to whether to allow intervention. Zeifman v. Michels, 229 S.W.3d at

465. However, there are circumstances in which intervention must be granted as a matter

of right, and striking a plea in intervention is an abuse of discretion. Id. at 466. For

example, if an intervenor satisfies the three-part test set forth by the Texas Supreme

Court in Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652 (Tex.

1990), striking the intervention is an abuse of discretion.

The Guaranty Federal test mandates allowing intervention if:

(1) the intervenor has a justiciable interest;

(2) “the intervention will not complicate the case by an excessive multiplication of the issues”; and

(3) “the intervention is almost essential to effectively protect the intervenor’s interest.”

Guaranty Federal, 793 S.W.2d at 657. TJFA meets all three elements of the test.

1. Justiciable interest. As set forth above, TJFA has a justiciable interest.

The only argument to the contrary presented to the District Court by BFI was that the

granting of the TCEQ’s Plea to the Jurisdiction extinguished the justiciable interest; as

shown above, this is not correct.

15

2. Intervention would not excessively multiply the issues. In the District

Court, BFI argued that allowing TJFA to intervene would excessively multiply the issues

because TJFA had preserved more issues for judicial review appeal than had NNC.18

Following BFI’s logic, intervention as a right would only exist if the intervenor could

raise no additional issues. But that is not the Guaranty Federal test; rather, the question

is whether intervention would excessively multiply the issues. This case is an appeal of

an administrative ruling, which is made on a set record, only on the issues preserved at

the administrative level, and with limits to the length of briefs. Intervention would not

lead to an excessive multiplication of the issues.

3. Intervention is essential to protect TJFA’s interests. NNC could only argue

those issues that it preserved during the administrative proceeding. TJFA preserved

issues that NNC did not. Thus (assuming TJFA is not allowed to pursue its own case),

intervention is the only way TJFA can protect its interests. BFI did not argue otherwise

in the District Court.

TJFA has met Guaranty Federal’s three-part test for intervention as a matter of

right. Even if the District Court’s granting of the TCEQ’s Plea to the Jurisdiction in

TJFA’s separately-filed case was proper (which it was not), TJFA still showed itself

entitled to intervene. If the Court reaches this issue, it should reverse the striking of

TJFA’s Plea in Intervention and remand for a hearing on the merits.

18 RR 52.

16

C. Even if TJFA does not have a right to intervene, the District Court has the discretion to allow intervention.

BFI argued to the District Court that TJFA could not intervene because it lacked a

justiciable interest due to the dismissal of its separately-filed case, and the Court

indicated during the hearing that it agreed.19 BFI maintained that this Court’s opinion in

Galveston Bay Conservation & Preservation Ass’n v. Texas Air Control Board, 586

S.W.2d 634 (Tex. Civ. App. – Austin 1979, writ ref’d n.r.e.), stands for the proposition

that in a judicial review suit reviewing an agency decision, a would-be intervenor has no

justiciable interest unless it has timely filed its own judicial review suit.20 This

characterization of Galveston Bay is incorrect. Even if the characterization were correct,

TJFA would still have a justiciable interest.

In Galveston Bay, a construction permit was sought from the Texas Air Control

Board. In the administrative proceedings, the permit was opposed by Galveston Bay and

the Shoreacres Environmental Committee (SEC). 586 S.W.2d at 636. After the Board

granted the permit, Galveston Bay exhausted its administrative remedies and, like TJFA

and NNC here, filed a judicial review appeal suit in Travis County District Court. Id. at

637-38. Hearing on the merits was set for August 16, 1978. Id. at 638. Just two days

before the hearing – after merits briefing had been completed – twelve parties sought to

intervene, and on the date of the hearing, Galveston Bay sought leave to amend its

pleadings. Id. Of the parties seeking to intervene, only one – SEC – had been a party to

the administrative proceeding; however, neither SEC nor any of the other intervenors had

19 RR 48, 54, 56.20 RR 48.

17

filed their own judicial review suits. Id. The District Court denied the motion to amend

and granted the motion to strike the intervention. Id.

On appeal, this Court held that the District Court did not abuse its discretion in

striking the intervention that was filed “two days prior to the court’s hearing on the merits

of the appeal.” Id. at 641. The Court noted that none of the intervenors other than SEC

were parties to the administrative proceeding, and thus could not have filed a judicial

review suit on their own. Id. at 642. With regard to SEC, the Court noted that it had not

filed its own appeal; thus, all the intervenors “failed to comply with the appeal

requirements set out in the APA [Administrative Procedure Act]. Since they could not

bring this action on their own, the court properly refused to allow them to intervene in the

appeal filed by the appellants.” Id. at 642.

Galveston Bay is a 32-year-old case that was decided before many important

opinions fleshing out the contours of intervention, such as the Supreme Court’s

establishment of the three-part test for intervention as of right in Guaranty Federal

(decided in 1990) and this Court’s detailed examination of the equitable roots of the right

to intervene in Zeifman v. Michels (decided in 2007). Galveston Bay’s holding that the

trial court was within its discretion to strike the intervention of those who were not

parties at the administrative level is unremarkable and clearly correct. Its rationale in

upholding the striking of SEC’s intervention is somewhat more oblique. But Galveston

Bay did not hold what BFI argued in the District Court here – that the SEC had no

justiciable interest because it had not filed its own judicial review suit. The word

“justiciable” does not appear anywhere in the Galveston Bay opinion. Substantively, the

18

Court held that the District Court acted within its discretion in striking SEC’s

intervention – but if SEC had no justiciable interest, the trial court had no discretion to

allow intervention, because a justiciable interest is a threshold requirement for

intervention.

Thus, Galveston Bay should not be read as requiring a party to file its own judicial

review suit as a prerequisite to intervening in another suit challenging the same

administrative order. Such an interpretation would essentially make intervention in

judicial review cases wholly unnecessary (because there is no need for intervention if

initiation of a separate lawsuit is required) and, for practical purposes, unavailable. But

even if it was interpreted in this manner, it still would not support a finding that TJFA

lacked a justiciable interest – because TJFA did, in fact, file its own suit, unlike the SEC

in Galveston Bay. To the extent BFI argues that TJFA had a justiciable interest that was

somehow extinguished when process in its separately-filed case was not served within 30

days, such an argument finds no support in existing case law. As set forth above, even if

the dismissal of its separately-filed lawsuit was correct (which is was not), TJFA still had

a justiciable interest at the time of intervention that was not affected by the subsequent

dismissal of its separate case. Thus, should this Court uphold the dismissal of TJFA’s

separate case, the striking of TJFA’s intervention in this case should be reversed because

it was apparently based on the District Court’s mistaken belief that TJFA had no

justiciable interest and thus that intervention was legally impermissible. At the very

least, the trial court had discretion to allow intervention.

19

CONCLUSION AND PRAYER

TJFA had a justiciable interest in the NNC judicial review lawsuit and complied

with all administrative remedies and the statute of limitations in filing its own suit.

Dismissal of TJFA’s separately-filed judicial review suit was in error, but if this Court

finds otherwise, reversal of the District Court’s granting of BFI’s Motion to Strike is

required, and this cause should be remanded with instructions that the striking of TJFA’s

intervention was legally incorrect and an abuse of discretion, or in the alternative that the

District Court should reconsider the Motion to Strike with instructions that TJFA has a

justiciable interest in this case, and that this Court further grant TJFA all other relief to

which it may show itself justly entitled.

20

Respectfully submitted,

By: /s/ James A. HemphillJames A. HemphillState Bar No. 00787674jhemphill@gdhm.comGRAVES DOUGHERTY HEARON & MOODY, PC401 Congress Ave., Suite 2200Austin, Texas 78701512-480-5762512-536-9907 (fax)

Erich M. BirchState Bar No. 02328395Angela K. MoormanState Bar No. 24007700BIRCH, BECKER & MOORMAN, LLP4601 Spicewood Springs RoadBuilding 4, Suite 101Austin, Texas 78759512-349-9300 (phone)512-349-9303 (fax)

ATTORNEYS FOR APPELLANTTJFA, L.P.

21

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document has been served on the following as indicated below, on this the 5th day of July, 2011.

Greg AbbottC. Andrew WeberDavid S. MoralesBarbara B. DeaneDavid PreisterCynthia WoelkNancy E. OlingerBrian E. Berwick Office of Attorney GeneralEnvironmental Protection SectionP.O. Box 12548, Capitol StationAustin, Texas 78711-2548via certified mail, return receipt requestedCourtesy copy via email

Paul G. GosselinkLloyd Gosselink Rochelle & Townsend, P.C.816 Congress Ave., Suite 1900Austin, Texas 78701Attorneys for BFI Waste Systems of North America, Inc.via certified mail, return receipt requestedCourtesy copy via email

/s/ James A. HemphillJames A. Hemphill

22

INDEX TO APPENDIX

Tab Document

A: District Court’s Order Granting Motion to Strike Intervention, September 9, 2010 (CR122-23)

B: District Court’s Final Judgment, March 30, 2011 (CR522)

A: District Court's Order Granting Motion to Strike Intervention, September 9, 2010(CRI22-23)

DC BK10257 PG1667

126th JUDICIAL DISTRICT

§§§§§§§§§

Plaintiff,

0.. 2-ECAUSE NO. D-I-GN-09-004113 '§ III ~ .!!o ~ --Jj

IN THE DISTRIC~US i.~z:. ~ iinc en liL.- :J ::l00 c:::» dO

<IJ 0 ·c.c tit a.. ~

TRAVISCOUNTY,~~ ~.-.... ~"0 \- "!ClJ- _ E:=0 de(.U.

v.

NORTHEAST NEIGHBORSCOALITION,

TEXAS COMMISSION ONENVIRONMENTAL QUALITY,

Defendant.

Order Granting Motion to Strike Intervention

On the 18th day ofMay, 2010, the Court considered Defendant-Intervenor's

Motion to Strike the intervention ofTJFA, L.P. (TJFA). The Court has considered the

motion, the pleadings in this cause, evidence, arguments of counsel, and relevant statutes

and caselaw, and finds as follows:

This suit was brought by Northeast Neighbors Coalition (NNC)against the Texas

Commission on Environmental Quality (TCEQ) pursuant to Tex. Health & Safety Code §

361.321. TJFA brought a separate suit challenging this same order, Cause No.

D-I-GN-09-004062. The TJFA suit was dismissed due to TJFA's failure to comply with

the requirement in Section 361.321(c) that service of citation on the TCEQ be

accomplished not later than the 30th day after the date on which the petition is filed. This

Since TJFA's suit was dismissed because ofTJFA's failure to comply with the

EXHIBIT

statutory prerequisite to suit, TJFA cannot now challenge the TCEQ order by intervening

122

A122

mandatory, not directory, and, therefore is a statutory prerequisite to a suit.

Court found that, under applicable law, this requirement was jurisdictional and

iiiiiiiiiiiiiiiiiiiiiiii====iiiiiiiiiiiiii-==--­iiiiiiiii OJ-,....===,....-to-IX)

=coiiiiiiiiiiiiii,.­_0===0

DC BK10257 PG1668

in this lawsuit and TJFA does not otherwise meet the test for intervention..

Therefore, the Court grants BFI's motion to strike TJFA's intervention.

IT IS THEREFORE ORDERED that TJFA's intervention in this lawsuit is

stricken.

Signed on the i dayof~~~~~~

AGREED AS TO FORM ONLY:

James A. HemphillGraves Dougherty Hearon & Moody, PC401 Congress Avenue, Suite 2200Austin, Texas 78701Attorney for PlaintiffTJFA

Paul G. GosselinkLloyd Gosselink Blevins, Rochelle & Townsend, P.C.P. O. Box 1725Austin, TX 78767Attorney for Intervenor BFI Waste Systems of North America, LLC

Nancy zab 11 OlingerAssistant AUo ey GeneralEnvironmental Protection andAdministrative Law DivisionP. O. Box 12548Austin, Texas 78711-2548Attorney for Defendant Texas Commission on Environmental Quality

2

123 123

B: District Court's Final Judgment, March 30, 2011 (CR522)

2

TEXAS COMMISSION ONENVIRONMENTAL QUALITY,

Defendant

DFI WASTE SYSTEMS OF NORTHAMERICA, LLC and GILESHOLDINGS, L.P.,

TRAVIS COUNTY, TEXAS

BK11094 PG83DC

CAUSE NO. D-I-GN-09-004I13" • .:II;..... :ii!"

IN THE DISTRICT cB~R ~ .9!_0)( • coOCl) _ ~

... 1- ...- \ ~

c.J - (:) r.;::?: N ...inc ~._;::) c;::) ~

126TH JUDICIAL DISTat£T('f') .go.J:.1II $ "U

~'> S &.- e .!!'Ot- Ii(1)_ _ e:=0 <.o:Cu-

§§§§§§§§§§§§§

IntervenorslDefendants §

Plaintiff

V.

Notice sent.&> ,nterlo<:utory None

Disp Parties: _~~~~---­

Disp code: @elS 'ita (qRedact pgs:_--- I0l.LA~__Judge -::J I( D. _. _;;lerk-llM~C__

NORTHEAST NEIGHBORSCOALITION,

ORDER AFFIRMING ORDER OF THECOMMISSION

On March 23, 20t t, the Court heard Plaintiffs administrative appeal from the order of

the Texas Commission on Environmental Quality approving the application of Plaintiff for

Permit No. MSW-I447A. Because the decision of the Commission is suppOIted by the

substantial evidence. the Court AFFIRMS the underlying order.

All reHefnot granted herein is DENIED.

Signed this ~ day of March, 20II.

iiiiiiii!!!!!!!!~- .J

EXHIBIT

1-fL522 522