Supreme Court of Texas.
ALBERTSON’S, INC., Petitioner,
v.
Charles SINCLAIR, Respondent.
No. 98–0945.
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Feb. 4, 1999.
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Rehearing Overruled March 11, 1999.
Attorneys & Firms
*959 Ken W. Good, Tyler, for Petitioner.
Timothy G. Moore, Walter Mark Bennett, Longview, Respondent.
Opinion
PER CURIAM.
We consider three issues in this petition for review: (1) when is a party, who seeks judicial review of a Texas Workers’ Compensation Commission Appeals Panel decision, required to file a copy of its petition with the Commission under the section 410.253 does not deprive the trial court of jurisdiction. Accordingly, we affirm the court of appeals’ judgment remanding the case to the trial court for further proceedings.
Charles Sinclair filed a compensation claim against Albertson’s, Inc. with the Texas Workers’ Compensation Commission, for an alleged work-related injury. Albertson’s contested the compensability of the injury. A Commission hearing officer and an Appeals Panel ruled for Albertson’s. The fortieth day after the Appeals Panel’s decision was a Sunday. The next day, Sinclair filed a petition with the trial court for judicial review under Texas Labor Code chapter 410, subchapter G and mailed a copy of the petition to the Commission. The Commission received the petition two days later. Albertson’s moved to dismiss the judicial review action, alleging that because the Commission did not receive Sinclair’s petition within forty days of the Appeals Panel’s decision, Sinclair’s filing with the Commission was untimely under section 410.253’s timely filing requirement was directory, not mandatory or jurisdictional.
The Labor Code provides for judicial review of an Appeals Panel decision. See TEX. LAB.CODE § 410.251. Chapter 410, subchapter F contains general provisions for judicial review, including:
Time for Filing Petition; Venue
A party may seek judicial review by filing suit not later than the 40 th day after the date on which the decision of the appeals panel was filed with the division.
TEX. LAB.CODE § 410.252(a).
Service
A copy of the petition shall be simultaneously filed with the court and the commission and served on any opposing party.
TEX. LAB.CODE § 410.253.
Commission Intervention
On timely motion initiated by the executive director, the commission shall be permitted to intervene in any judicial proceeding under this subchapter or Subchapter G.
TEX. LAB.CODE § 410.254.
In addition, subchapter G provides a modified trial de novo procedure that applies only to judicial review actions involving “compensability or eligibility for or the amount of income or death benefits.” TEX. TEX. LAB.CODE § 410.305.
Albertson’s asserts that section 410.253 to require a party to file its judicial review petition with the Commission and with the trial court on the same day.
Albertson’s also argues that Commission Rule 102.7 precludes applying “the mailbox rule” to Commission filings under Rule 5 does not conflict with subchapter G, it applies to subchapter G judicial review actions. Sinclair timely filed his petition with the Commission by sending it to the Commission by first-class United States mail on the day it was due.
Lastly, Albertson’s argues that section 410.253 was directory. We conclude that simultaneously filing with the trial court and the Commission is mandatory but not jurisdictional.
We generally construe the word “shall” as mandatory, unless legislative intent suggests otherwise. See Ward v. Charter Oak Fire Ins. Co., 579 S.W.2d 909, 910 (Tex.1979).
The plain meaning of “shall” supports a mandatory construction of section 410.253’s simultaneous filing requirement is mandatory.
Nevertheless, the liberal construction we must give workers’ compensation laws precludes a jurisdictional interpretation. See TEX. LAB.CODE § 410.254. If the Commission receives late notice and requires additional time to intervene, the trial court can abate the judicial review action as necessary.
Moreover, that Chisholm, 287 S.W.2d at 945.
Therefore, we hold that section 410.253, while mandatory, is not jurisdictional. Accordingly, without hearing oral argument, we grant Albertson’s petition for review and affirm the court of appeals’ judgment. See TEX.R.APP. P. 59.1
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Footnotes |
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| 1 |
See Texas Rule of Civil Procedure 5, which provides in part: If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing. |
| 2 |
See TEX. LAB.CODE § 410.301–.308. |