Opinion
No. 21-0513
04-28-2023
Sibel Onasis FERRER, Petitioner, v. Madalena Elizabeth ALMANZA, Isabella P. Almanza, and Albert Boone Almanza, Respondents
David L. Plaut, Austin, Scott Blaney Talbott, Eric Scott Peabody, Austin, for Respondents. Eric Houghton Marye, Dallas, for Petitioner.
David L. Plaut, Austin, Scott Blaney Talbott, Eric Scott Peabody, Austin, for Respondents.
Eric Houghton Marye, Dallas, for Petitioner.
Justice Huddle delivered the opinion of the Court, in which Chief Justice Hecht, Justice Boyd, Justice Devine, Justice Blacklock, Justice Bland, and Justice Young joined.
Section 16.063 of the Civil Practice and Remedies Code tolls the running of a statute of limitations during the "absence from this state of a person against whom a cause of action may be maintained." In Ashley v. Hawkins , this Court concluded that Section 16.063 does not apply, and the running of the relevant limitations period is not tolled, where the defendant permanently leaves Texas during the limitations period but remains subject to personal jurisdiction in Texas and amenable to service under the Texas long-arm statute. 293 S.W.3d 175, 179 (Tex. 2009). Ashley held, in other words, that a defendant's physical absence from Texas, standing alone, does not trigger the application of Section 16.063.
The question in this case is whether Section 16.063 applies when a defendant who is a Texas resident leaves the state for part of the limitations period but remains a Texas resident, subject to personal jurisdiction in Texas and amenable to service, throughout. We conclude Section 16.063 does not apply under these circumstances for the same reasons it did not in Ashley . We therefore hold that Section 16.063 did not toll the running of the statute of limitations during Isabella Almanza's physical absence from Texas and affirm the summary judgment in her favor.
I. Background
Sibel Ferrer was a passenger in a car involved in an accident with another car driven by Isabella Almanza. The accident happened in February 2017, and Ferrer sued for personal injuries in January 2019. But Ferrer's petition incorrectly named Isabella's sister, Madalena, as the driver–defendant. Ferrer also sued Madalena's (and Isabella's) father, alleging negligent entrustment. Madalena and her father filed a verified denial in which they asserted that Madalena "was not a part of or party to the incident that makes the basis of this suit." And in response to Ferrer's request for disclosure, they identified Isabella as the person who had been driving when the accident occurred. Ferrer amended her petition to name Isabella as a defendant in May 2019, which was two years and three months after the accident.
Isabella lived in Texas at the time of the accident, but in 2018 she enrolled at Harvard University in Massachusetts. Yet Isabella returned to Texas during breaks, maintained a Texas mailing address, and kept her Texas driver license throughout the limitations period. After Ferrer amended her petition to name Isabella as a defendant, she tried serving Isabella at her family's Austin home. During one such attempt at personal service, Isabella's father, who is a lawyer, offered to accept service on her behalf. Ferrer instead moved for substituted service, which the trial court granted. Isabella was, in fact, at her family's home when the process server arrived to carry out the substituted service, so Isabella was personally served at that time, in July 2019.
The next month, Isabella answered and moved for summary judgment based on the two-year statute of limitations. See TEX. CIV. PRAC. & REM. CODE § 16.003(a). In response, Ferrer amended her petition to allege that the running of the statute of limitations was tolled by Civil Practice and Remedies Code Section 16.063 while Isabella was in Massachusetts. Section 16.063 says:
The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person's absence.
Id. § 16.063. Ferrer contends that Isabella was absent from Texas for 225 days between August 2018 and May 2019. She argues the running of the limitations period was suspended during that time, making her May 2019 amended petition timely.
The trial court granted summary judgment for Isabella, and the court of appeals affirmed. 647 S.W.3d 726, 729 (Tex. App.—Amarillo 2021). Ferrer petitioned for review.
Ferrer nonsuited her claims against Isabella's father and Madalena, making the summary-judgment order a final, appealable judgment.
II. Applicable Law
Statutes of limitations have long been an important feature "in all systems of enlightened jurisprudence." Wood v. Carpenter , 101 U.S. 135, 139, 25 L.Ed. 807 (1879). They "are vital to the welfare of society and are favored in the law" because they "promote repose by giving security and stability to human affairs." Id. ; see also Murray v. San Jacinto Agency, Inc. , 800 S.W.2d 826, 828 (Tex. 1990) (recognizing that statutes of limitations reflect the Legislature's determination of what is a reasonable time to present a claim). By terminating claims the Legislature has deemed stale, statutes of limitations "protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." Murray , 800 S.W.2d at 828. Statutes of limitations are themselves bright-line rules, requiring a person to bring suit within a specified time after the cause of action accrues. See, e.g. , TEX. CIV. PRAC. & REM. CODE § 16.003(a) (identifying various claims that must be brought "not later than two years after the day the cause of action accrues"). But the Legislature has also defined particular circumstances in which the typically hard and fast limitations deadline may not apply. See id. § 16.001(b) ("If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period."); id. § 16.0045(d) (tolling the limitations period for personal-injury claims based on certain sexual crimes where the defendant's identity is unknown). If a tolling provision applies, it delays or tolls the running of the applicable limitations period.
Civil Practice and Remedies Code Section 16.063 is one such tolling statute. Enacted in 1841, five years after Texas became an independent republic, its predecessor statute provided that "the time of [a defendant]’s absence shall not be accounted" as part of the limitations period if the defendant was "without the limits of this republic" at any time during which suit could be brought. Except for replacing "republic" with "state" and some minor grammatical edits, this tolling statute remained unchanged for over 140 years.
The statute, then part of "An Act of Limitations," provided:
[I]f any person against whom there is or shall be cause of action, is or shall be without the limits of this republic at the time of the accruing of such action, or at any time during which the same might have been maintained, then the person entitled to such action shall be at liberty to bring the same against such person or persons after his or their return to the republic and the time of such persons’ absence shall not be accounted, or taken as a part of the time limited by this act.
Act approved Feb. 5, 1841, 5th Cong., R.S., § 22, 1841 Repub. Tex. Laws 163, 170, reprinted in 2 H.P.N. Gammel, The Laws of Texas 1822–1897 , at 627, 634 (Austin, Gammel Book Co. 1898).
When the Legislature established the Texas Revised Civil Statutes in 1925, the statute was enacted as Article 5537, under the heading "Temporary Absence," as follows:
If any person against whom there shall be cause of action shall be without the limits of this State at the time of the accruing of such action, or at any time during which the same might have been maintained, the person entitled to such action shall be at liberty to bring the same against such person after his return to the State and the time of such person's absence shall not be accounted or taken as a part of the time limited by any provision of this title.
Tex. Rev. Civ. Stat. art. 5537 (1925), repealed by Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 9, 1985 Tex. Gen. Laws 3242, 3322. The Legislature made no changes to Article 5537 until 1985.
Nineteenth-century authorities applied this tolling provision to protect domestic creditors from "the absence of their debtors." Ayres v. Henderson , 9 Tex. 539, 541 (1853) (holding statute applied to a claim against a defendant who had permanently moved away from Texas and thus tolled the running of limitations as long as there was some possibility the defendant might return to Texas). Tolling the running of a statute of limitations when debtors fled the republic (and, later, the state) to avoid debts was crucial because, under contemporaneous rules governing personal jurisdiction and service, physical absence from Texas equated to immunity from judgment. Id. ; see also Teal v. Ayres , 9 Tex. 588, 593 (1853) (recognizing that the physical absence of a debtor amounted to "exemption from process and judgment"). This was, of course, consistent with the United States Supreme Court's holding in 1877 that a court could not constitutionally determine a defendant's personal liability unless the court acquired jurisdiction "by service of process within the State, or [the defendant's] voluntary appearance." Pennoyer v. Neff , 95 U.S. 714, 733, 24 L.Ed. 565 (1877) ; see also Burnham v. Superior Ct. , 495 U.S. 604, 616, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990) (plurality op.) ("The view of most courts in the 19th century was that a court simply could not exercise in personam jurisdiction over a nonresident who had not been personally served with process in the forum.").
But while the tolling statute's text remained essentially unchanged from its enactment in 1841 to 1985, that time period saw revolutionary change in the law of personal jurisdiction and service. The Pennoyer rule was diluted over time. Burnham , 495 U.S. at 617, 110 S.Ct. 2105 (plurality op.). Texas, like other states, enacted a statute permitting service on nonresident motorists who caused accidents on Texas roads by appointing the Chairman of the State Highway Commission as the nonresident driver's agent for service in Texas. Act of Feb. 19, 1929, 41st Leg., R.S., ch. 125, § 1, 1929 Tex. Gen. Laws 279, 279–80 (current version at TEX. CIV. PRAC. & REM. CODE §§ 17.061 –.069). The Legislature acknowledged this was in response to the rigid physical-presence requirement for service, noting that, at that time, "we have no adequate means of serving civil process on non-residents of the State who are involved in such accidents." Id. § 2. The U.S. Supreme Court had upheld similar laws on a theory that the nonresident gave "implied consent" to the appointment of a resident agent. Hess v. Pawloski , 274 U.S. 352, 356, 47 S.Ct. 632, 71 L.Ed. 1091 (1927).
Then, in 1945, the U.S. Supreme Court retreated from Pennoyer entirely in International Shoe Co. v. Washington , 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Whereas Pennoyer had required a defendant's "presence within the territorial jurisdiction of a court" to render a judgment against that defendant, Int'l Shoe , 326 U.S. at 316, 66 S.Ct. 154 (citing Pennoyer , 95 U.S. at 733 ), the International Shoe Court concluded that courts could bind a defendant to a personal judgment if the defendant had "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ " Id. (quoting Milliken v. Meyer , 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940) ). In response, Texas and most other states enacted long-arm statutes through which a nonresident that "engages in business in this State," including "the committing of any tort in whole or in part in this State," could be served with process by serving the Secretary of State. Act of Mar. 18, 1959, 56th Leg., R.S., ch. 43, §§ 3, 4, 1959 Tex. Gen. Laws 85, 85–86 (current version at TEX. CIV. PRAC. & REM. CODE §§ 17.041 –.045).
With physical presence no longer a prerequisite to obtaining jurisdiction and a judgment, states began to apply their own tolling statutes based on whether a defendant was subject to jurisdiction during the limitations period, not based on the defendant's physical presence in the state. See, e.g., Peters v. Tuell Dairy Co. , 250 Ala. 600, 35 So. 2d 344, 345 (1948) (concluding a statute that excludes from the limitations period the time a defendant is "absent from the state" does not apply if service could be secured on the defendant). Texas initially resisted. In Vaughn v. Deitz , a divided Court held that the tolling statute applied to a claim against a motorist who had left Texas after an accident, despite the availability of service on the State Highway Commission's chairman. 430 S.W.2d 487, 490 (Tex. 1968). The Court rejected the defendants’ argument that the tolling statute should not apply when a defendant is subject to personal jurisdiction during the limitations period, though it recognized that this was "the majority view" among states with similar tolling statutes. Id. at 489 ; see also id. at 491 (Pope, J., dissenting) (noting that "almost all" other states with similar tolling statutes have held that "the presence or absence of a defendant must be solved in terms of jurisdiction over the person"). The Court instead held that the statute's use of the phrases "without the limits of this State" and "after his return to the State" "obviously refer[red] to the absence of the defendant from or presence within the territorial limits of the state." Id. at 490 (quoting TEX. REV. CIV. STAT. art. 5537 (repealed 1985)).
The Legislature enacted the current version of the tolling statute as Section 16.063 of the Civil Practice and Remedies Code in 1985. Although the act codifying the Civil Practice and Remedies Code stated that it did not intend any substantive change, Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 10, 1985 Tex. Gen. Laws 3242, 3322, the Legislature deleted from the text two phrases upon which Deitz relied: the statute's reference to a defendant's being "without the limits of this State" and the statement that a plaintiff could bring an action "after [the defendant's] return to the State." Compare TEX. CIV. PRAC. & REM. CODE § 16.063 with TEX. REV. CIV. STAT. art. 5537.
Though it had embraced the minority view in Deitz , the Court reversed course after these statutory changes were effected. In Kerlin v. Sauceda , 263 S.W.3d 920 (Tex. 2008), the Court held that Section 16.063 did not toll the running of the statute of limitations because the defendant, though not physically present in Texas during the limitations period, was never "absent from Texas" for purposes of Section 16.063. Id. at 928. Rather, he was present in Texas for purposes of the tolling statute because he was "amenable to service of process under the longarm statute and ha[d] contacts with the state sufficient to afford personal jurisdiction." Id. at 927. But Kerlin did not overrule Deitz . Instead, a five-justice majority concluded that the general long-arm statute, unlike the nonresident-motorist statute in Deitz , established the defendant's "presence within the state's territorial limits for purposes of personal jurisdiction." Id. Yet four justices would have overruled Deitz and simply held that "a person whose minimum contacts make them amenable to suit in a state cannot fairly be said to be ‘absent from the state.’ " Id. at 928 (Brister, J., concurring).
One year after deciding Kerlin , the Court expressly (and unanimously) overruled Deitz , holding that Section 16.063 did not toll the running of a statute of limitations against a defendant who permanently left Texas following a car accident but was otherwise amenable to service under either the nonresident-motorist statute or the general long-arm statute. Ashley , 293 S.W.3d at 177–79. Since then, our courts of appeals have applied Section 16.063 inconsistently. Some concluded that a Texas resident who was at all times subject to Texas courts’ jurisdiction and amenable to service was never "absent" from Texas under Kerlin and Ashley despite intermittent excursions outside the state's boundaries. See Zavadil v. Safeco Ins. Co. of Ill. , 309 S.W.3d 593, 596 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) ; see also Martin-de-Nicolas v. Octaviano , No. 03-19-00160-CV, 2020 WL 6789093, at *3 (Tex. App.—Austin Nov. 19, 2020, pet. denied) ; Liptak v. Brunson , 402 S.W.3d 909, 913 (Tex. App.—Dallas 2013, no pet.). But the First Court of Appeals distinguished Kerlin and Ashley because they involved nonresident defendants. Medina v. Tate , 438 S.W.3d 583, 589–90 (Tex. App.—Houston [1st Dist.] 2013, no pet.). It read the phrase "absence from this state" to refer only to a defendant's physical absence, without regard to the meaning Kerlin and Ashley ascribed to that phrase. Id. at 590. Accordingly, it regarded the defendant's amenability to personal jurisdiction and service irrelevant and held that physical absence for "several days" tolled the running of the statute of limitations under the "plain language of section 16.063." Id. at 588 (citing Winston v. Am. Med. Int'l, Inc. , 930 S.W.2d 945, 955 (Tex. App.—Houston [1st Dist.] 1996, writ denied) ). We granted review to resolve our courts of appeals’ conflict on the issue.
III. Analysis
Ferrer concedes that, under Ashley , whether a defendant is "absen[t] from this state" under Section 16.063 turns not on her physical location but, rather, on whether the defendant remains subject to personal jurisdiction in Texas and amenable to service. Ferrer does not ask us to overrule Ashley . She instead argues that Ashley is inapplicable because, unlike Isabella, the defendant in Ashley ceased being a Texas resident after the plaintiff's claim accrued. See Medina , 438 S.W.3d at 590 (concluding that Kerlin and Ashley "deal[t] with nonresidents" and thus have no application to a claim against a Texas resident). Ferrer contends that Texas courts have "long recognized" that Section 16.063 and its predecessors apply "only to Texas residents." See id. at 589 (" Section 16.063 has consistently been interpreted, as a general rule, to apply only to Texas residents." (citing Guardia v. Kontos , 961 S.W.2d 580, 584 (Tex. App.—San Antonio 1997, no pet.), and Mourning v. Crown Stevedoring Co. , 417 S.W.2d 725, 726 (Tex. App.—Waco 1967, no writ) )). Ferrer thus argues that when, as in this case, the defendant is a Texas resident, Section 16.063 tolls limitations for the periods of time during which the defendant was physically absent from the state.
Ferrer's argument is based on a misreading of the statute and our precedents. Nothing in the text of Section 16.063 suggests that it applies only to Texas residents. If the Legislature intended to limit Section 16.063 ’s application to Texas residents, it certainly could have said so expressly. And this Court has never held that the application of Section 16.063 (or its predecessors) depends on whether the defendant is a Texas resident. Snoddy v. Cage , the source of the purported "general rule" that Section 16.063 applies only to Texas residents, held that the tolling statute did not apply to claims against a defendant who "never was in [Texas] before" the cause of action accrued. 5 Tex. 106, 110 (1849). Snoddy cannot be read to mean that the tolling statute is inapplicable to nonresidents altogether, especially when the defendant was in Texas when the claim accrued. Ferrer's interpretation would lead to the odd result that a resident defendant who leaves Texas would be subject to tolling under Section 16.063 if the plaintiff sued before the defendant established residency elsewhere, but not if the plaintiff sued after the defendant established residency elsewhere, because the defendant would then be subject to the long-arm statute. As we recognized in Ashley , having Section 16.063 ’s applicability turn on how jurisdiction over the defendant was obtained would be "unworkable and inefficient" and would "create confusion when litigants attempt to determine if the tolling statute applies to their cases." 293 S.W.3d at 179.
Ferrer's attempt to distinguish Ashley is likewise unconvincing. As in this case, the defendant in Ashley was a Texas resident and was physically present in Texas when the cause of action accrued. That defendant then moved to another state. Under the Court's pre- International Shoe precedents, the running of the limitations period would have been tolled under Section 16.063. See Ayres , 9 Tex. at 541 (applying the tolling statute to a defendant that incurred an obligation while living in Texas but then permanently moved to another state). Ashley held instead that the defendant's physical departure from Texas was not an "absence from this state" for purposes of Section 16.063 because she was amenable to service of process under the long-arm statute. 293 S.W.3d at 178–79. The Court thus determined that Section 16.063 did not toll the running of the limitations period. Id. at 179.
The dissent contends that Ashley and Kerlin are distinguishable because, in those cases, the long-arm statute appointed an in-state agent for service, rendering the defendants constructively present in Texas. See post at 749–51 (Busby, J., dissenting). This contention has no support in the Court's opinions. The holdings in both cases turned on the defendants’ having minimum contacts sufficient to create personal jurisdiction. See Kerlin , 263 S.W.3d at 927 (distinguishing the long-arm statute from the nonresident-motorist statute, which also appoints an in-state agent, because the long-arm statute "provides that a nonresident does business ‘in this state’ " and thus "has contacts with the state sufficient to afford personal jurisdiction"); Ashley , 293 S.W.3d at 179 ("[W]e ... hold, as we did in Kerlin , that a defendant is ‘present’ in Texas, for purposes of the tolling statute, if he or she is amenable to service under the general longarm statute, as long as the defendant has ‘contacts with the state sufficient to afford personal jurisdiction.’ " (quoting Kerlin , 263 S.W.3d at 927 )).
Here, Isabella physically left Texas to attend college in August 2018, some eighteen months after the February 2017 accident. And Ferrer does not dispute that Isabella remained subject to the personal jurisdiction of Texas courts and amenable to service of process throughout the two-year limitations period. The uncontroverted evidence reflects she maintained the mailing address of her family's home in Texas as her own, so Ferrer could have served her by mailing a copy of the citation and petition to her by registered or certified mail. TEX. R. CIV. P. 106(a)(2). In the event Ferrer was unsuccessful in obtaining actual service, she could move for substituted service, which she in fact did. TEX. R. CIV. P. 106(b). And the record does not reflect any effort to evade service—to the contrary, Isabella's father (a lawyer) offered to accept service on her behalf, and the process server successfully served Isabella in person at her family's home after Ferrer obtained an order for substituted service. Thus, applying the interpretation of "absence from this state" that we adopted in Ashley , Isabella was never absent from Texas for purposes of Section 16.063. Ferrer and our dissenting colleague argue that applying Ashley ’s interpretation of "absence from this state" to Texas residents would render Section 16.063 a nullity because there would be no case in which Section 16.063 would apply. Post at 751–52 (Busby, J., dissenting). Isabella posits that Section 16.063 would still apply to transient defendants who commit a tort in Texas but have no permanent address and are not otherwise amenable to service. Courts, to be sure, should strive to avoid construing a statute in a manner that could render it meaningless, but courts cannot adopt a construction that would be unreasonable. See Perkins v. State , 367 S.W.2d 140, 146 (Tex. 1963) ("[A] cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible. " (emphasis added)); see also Sirius XM Radio, Inc. v. Hegar , 643 S.W.3d 402, 407 (Tex. 2022) (noting that courts cannot consider the construction of a statute that is unreasonable or contradicts the statute's plain language). Nothing in the statute's text or history, and nothing in our precedents, supports Ferrer's attempt to interpret "absence from this state" one way if the defendant is a Texas resident and another if the defendant is not.
Our dissenting colleague faults us for considering International Shoe and other developments in the law of personal jurisdiction, suggesting that, in doing so, we are following a "federal fad." Post at 748–49 (Busby, J., dissenting). But it is the dissent's theory that would start an unwise trend. Imbuing a tolling provision—an exception to bright-line limitations statutes—with the expansive meaning the dissent would give it would make the exception swallow the legislatively determined rules that establish the fixed periods in which plaintiffs must present their claims. This would, in turn, create great uncertainty for parties and courts alike. Would a two-year limitations period double in length for Texans, like truck drivers and flight attendants, who regularly commute across the state's border? Do only overnight trips outside the Lone Star State extend the limitations period? Would every case in which limitations is potentially at issue result in discovery of the defendant's daily physical location during the limitations period? Our dissenting colleague's approach would undercut both the legislative determinations of what constitutes a reasonable amount of time in which to present a claim and our own well-established efforts to embrace bright-line rules in the limitations context. See Zive v. Sandberg , 644 S.W.3d 169, 175 (Tex. 2022) ("In the area of limitations, bright-line rules generally represent the better approach." (quoting Apex Towing Co. v. Tolin , 41 S.W.3d 118, 122 (Tex. 2001) ) (cleaned up)).
Our dissenting colleague argues that it "makes no sense" to conclude that a defendant is only "absen[t] from this state" when that defendant is not subject to personal jurisdiction and amenable to service. Post at 745–46 (Busby, J., dissenting). Yet that is what the Court held in Ashley , and no party has suggested that case was wrongly decided. The dissent instead relies on the phrase "a person against whom a cause of action may be maintained" to contend that Section 16.063 applies only to persons over whom a court already has jurisdiction. Id. at 745–46 (Busby, J., dissenting). But the better reading of this phrase—and the only one consistent with Ashley —is that it makes no reference to any jurisdictional inquiry but, rather, merely identifies the person against whom suit is contemplated.
Our reading of Section 16.063 is further bolstered by the Legislature's 1985 amendments to the statute. Deitz ’s pre-1985 holding that the tolling statute's application turned on a defendant's physical absence relied on the tolling statute's references to a defendant "without the limits of this State" and to bringing suit against a defendant "after his return to the State." 430 S.W.2d at 490 (quoting TEX. REV. CIV. STAT. art. 5537 (repealed 1985)). The Legislature deleted both phrases when it codified Section 16.063. See TEX. CIV. PRAC. & REM. CODE § 16.063. Ashley ’s overruling of Deitz was consistent with these statutory changes.
Ferrer argues that we cannot consider these statutory amendments because the Legislature, in codifying the Civil Practice and Remedies Code, intended "no substantive change" in the law. Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 10, 1985 Tex. Gen. Laws 3242, 3322. But the Legislature may have deleted the phrases on which Deitz relied to repudiate Deitz and restore the tolling statute's original meaning, which linked a defendant's "absence" with the inability to obtain jurisdiction and service. See Ayres , 9 Tex. at 541 (noting the statute protected domestic creditors from "the absence of their debtors and consequent immunity of the latter from process and judgment"); Teal , 9 Tex. at 593 (noting the statute protected domestic creditors from injury by "the absence of [their] debtor[s], and consequent exemption from process and judgment, in a suit commenced by personal service or notice"). In any event, courts must generally interpret the words of a codified statute as it has been enacted by the Legislature regardless of any statement asserting that changes are not substantive. Fleming Foods of Tex., Inc. v. Rylander , 6 S.W.3d 278, 284 (Tex. 1999). The text of Section 16.063 provides no support for construing "absence from this state" to mean different things depending on whether the defendant is a Texas resident.
Finally, we see no reason (and Ferrer has not asked us) to reconsider Ashley ’s holding. The Legislature has had ample opportunity to amend Section 16.063 since Ashley . The fact that it has not done so counsels us not to disturb that holding here. See Sw. Bell Tel. Co. v. Mitchell , 276 S.W.3d 443, 447 (Tex. 2008) (" ‘[I]n the area of statutory construction, the doctrine of stare decisis has its greatest force’ because the Legislature can rectify a court's mistake, and if the Legislature does not do so, there is little reason for the court to reconsider whether its decision was correct." (footnote omitted) (quoting Marmon v. Mustang Aviation, Inc. , 430 S.W.2d 182, 186 (Tex. 1968) )).
IV. Conclusion
Ashley held that "absence from this state" under Section 16.063 depends not on physical location but, rather, on whether a defendant is subject to personal jurisdiction and service. That holding applies to resident and nonresident defendants with equal force. If a defendant is subject to personal jurisdiction in Texas and amenable to service, he or she is not absent from Texas under Section 16.063, and Section 16.063 does not apply. Isabella Almanza remained subject to personal jurisdiction in Texas and amenable to service throughout the applicable two-year limitations period despite attending college outside Texas for several months. Accordingly, Section 16.063 did not toll the running of the statute of limitations. The court of appeals’ judgment is affirmed.
Justice Busby filed a dissenting opinion.
Justice Lehrmann did not participate in the decision.
Justice Busby, dissenting.
Discussions of statutory interpretation can seem frothy and academic, with law review articles, books, and panels by the dozen exploring the latest twist or seeking to create a new trend. But the subject of how courts should interpret statutes also has a very real effect on who exercises government power and which parties prevail in particular disputes. Not only is the choice of one interpretive method over another vitally important to the separation of legislative from judicial power, it alters the outcome of actual cases like this one. Specifically, this case illustrates the difference between Judge Guido Calabresi's pragmatic common-law approach, which empowers courts to declare statutes they view as out of step with the contemporary legal landscape void for obsolescence, and Justice Antonin Scalia's formal textualist approach, which adheres to the ordinary meaning of the words enacted and leaves statutory updating to the legislative branch.
See Guido Calabresi , A Common Law for the Age of Statutes 2 (1982); Antonin Scalia , A Matter of Interpretation: Federal Courts and the Law 9-12, 47 (Amy Gutmann ed., 1997); see also Cass R. Sunstein, Justice Scalia's Democratic Formalism , 107 Yale L.J. 529, 529-531 (1997).
Observers of this Court's jurisprudence can be forgiven for believing that we long ago chose the latter approach. After all, our cases are rife with statements like
• "when we stray from the plain language of a statute, we risk encroaching
on the Legislature's function to decide what the law should be,"
• "it is not for courts to decide if legislative enactments are wise or if particular provisions of statutes could be more effectively worded to reach what courts or litigants might believe to be better or more equitable results," and
• "[t]he Constitution ... entrusts to [the legislative branch], not the courts, the responsibility to decide whether and how to modernize outdated statutes."
Fitzgerald v. Advanced Spine Fixation Sys., Inc. , 996 S.W.2d 864, 866 (Tex. 1999).
In re Dep't of Fam. & Protective Servs. , 273 S.W.3d 637, 645 (Tex. 2009).
In re Facebook, Inc. , 625 S.W.3d 80, 101 (Tex. 2021).
Using this approach, the dictionary and our cases show that a statute tolling limitations for the period of a putative defendant's "absence" from the state refers to the defendant "not being where [she is] usually expected to be." In this ordinary sense, no one disputes that a Texas resident is absent while away attending college in another state.
Absence , Cambridge Dictionary , https://dictionary.cambridge.org/us/dictionary/english/absence (last visited April 19, 2023); see also Part I, infra.
Yet today, the Court concludes that following the plain meaning of the statutory text would be "unwise." Instead, the Court looks to what opinions have said about the statute's supposed object and a survey of how the judge-made federal law of personal jurisdiction—a topic this statute does not address—has evolved over the decades since the statute was enacted. Based on this evolution, the Court declares that "absence from this state" now means not "subject to personal jurisdiction and service" in the state.
Ante at 742–43 n.5.
See ante at 738–39 (citing Ayres v. Henderson , 9 Tex. 539, 541 (1853) (opining that "the object of the section was for the protection of domestic creditors"), and Teal v. Ayres , 9 Tex. 588, 593 (1853) (discussing what "the Legislature intended" in adopting the statute)).
Id. at 739–41.
Id. at 743–44.
Most people who read this statute would never suspect that "absence" holds this hidden meaning. Indeed, the Court's preferred meaning is contrary to another phrase in the statute, which provides tolling only during the absence "of a person against whom a cause of action may be maintained"—a category that includes only people over whom a court would have jurisdiction. Under the Court's holding, then, tolling applies for the period that a person subject to jurisdiction (against whom a cause of action may be maintained) is not subject to jurisdiction (absent from the state). That makes no sense.
Moreover, none of the changes in law reviewed by the Court alter the ordinary meaning of "absence" for Texas residents like respondent Isabella Almanza. For example, the Court asserts that this case is controlled by our decision in Ashley v. Hawkins , 293 S.W.3d 175 (Tex. 2009), but in doing so it makes a critical interpretive error. Ashley undertook a commonplace statutory interpretation task: using one statute's designation of an in-state agent for serving a nonresident defendant to inform the meaning of "absence" in another statute tolling limitations. Id. at 177-79. But the Court overlooks that the first statute does not apply to Isabella, so it cannot affect when she is absent from the state according to the second statute. The Court attempts to bridge this gap with its catalog of judicial changes in the law of personal jurisdiction and service, but those changes likewise cannot support the Court's holding because they too apply only to nonresidents.
Perhaps most troubling of all, the Court's position that "absence" means not "subject to jurisdiction and amenable to service" essentially repeals the tolling statute altogether. If a defendant cannot be sued at all due to lack of personal jurisdiction, no court will ever be called upon to decide whether statutory tolling would apply to a limitations defense raised by that defendant. And defendants who are subject to jurisdiction are always amenable to some form of service: our statutes and rules allow for substituted service on non-residents as well as alternative methods of serving residents who are absent from the state or unable to be found. Thus, under the Court's interpretation, no defendant against whom a cause of action may be maintained will ever be absent, and the tolling statute will never apply.
Because the Court's holding departs from the ordinary meaning of the enacted text and renders the statute a nullity, I respectfully dissent.
I
The tolling statute at issue, entitled "Temporary Absence From State," provides:
The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person's absence.
TEX. CIV. PRAC. & REM. CODE § 16.063. The question before us is whether a Texas resident defendant who was involved in a car crash in Texas is "absen[t] from this state" while away temporarily attending college in another state, thus extending the statute of limitations to sue her for the crash. I would answer yes and therefore reverse.
When a potential defendant is out of state, this statute allows the plaintiff additional time to gather information about the correct parties to sue, as well as time to locate and serve those parties personally or, if they cannot be located, to pursue alternative service methods.
According to our precedent, the correct place to find the answer is in the common, ordinary meaning of "absence from this state." See Silguero v. CSL Plasma, Inc. , 579 S.W.3d 53, 59 (Tex. 2019). "Absence" is the "state of being at a distance in place" that "primarily supposes a prior presence," the "fact of not being where you are usually expected to be," or, in a legal sense, the "condition of being away from one's usual place of residence." Furthermore, the statute's reference to tolling "for the period of the person's absence" suggests a finite period of physical absence, as does the title of the statute: "Temporary Absence From State." TEX. CIV. PRAC. & REM. CODE § 16.063 (emphases added). Because a Texas resident is usually expected to be in Texas, her time away temporarily in another state is an absence in this ordinary sense. That should be the end of this case.
Absence , Webster's Dictionary 1828, https://webstersdictionary1828.com/Dictionary/absence (last visited Mar. 21, 2023).
Absence , Cambridge Dictionary , https://dictionary.cambridge.org/us/dictionary/english/absence (last visited Apr. 19, 2023); see also Absence , Merriam-Webster , https://www.merriam-webster.com/dictionary/absence (last visited Apr. 19, 2023) ("a failure to be present at a usual or expected place").
Absence , Black's Law Dictionary 8 (Bryan A. Garner ed., 11th ed. 2019); see also Absence , New Oxford American Dictionary 6 (3d ed. 2010) ("the state of being away from a place or person"). The commonly understood meaning of a legal reference to an absent defendant has long been that it "does not embrace non-resident defendants but has reference to parties resident in the state, but temporarily absent therefrom." Absent , John Bouvier , Bouvier's Law Dictionary 92 (Francis Rawle ed., 8th ed. 1914).
It is worth noting, however, that this common, ordinary meaning of "absence" as being away from a place where one could be expected is also consistent with our historical understanding of the tolling statute beginning shortly after its original passage by the Congress of the Republic of Texas in 1841. We have held that its text extends limitations only for claims against residents or nonresidents who were actually present in Texas at an earlier time, including debtors who may have fled the state—whether temporarily or permanently—to escape liability. See Ayres v. Henderson , 9 Tex. 539, 541 (1853) ; Snoddy v. Cage , 5 Tex. 106, 109, 116 (1849) ; see also Stone v. Phillips , 142 Tex. 216, 176 S.W.2d 932, 934 (1944). Conversely, the statute denies tolling for claims against nonresidents who later immigrate to Texas, thus preserving debtors’ limitations defenses against out-of-state creditors who might try to collect by following them. Snoddy , 5 Tex. at 111-12.
In sum, as we explained only eight years after the statute's enactment, the term "absence" refers to "persons who have been present," and it "could never have been applied to persons who had never been within the limits of the country." Id. at 115-16 ; see also Phillips v. Holman , 26 Tex. 276, 281-82 (1862) ; Fisher v. Phelps, Dodge & Co. , 21 Tex. 551, 560 (1858). We have also recognized this ordinary meaning of "absence" in more recent cases addressing other statutes. Less than twenty years ago, we held that "an ‘absence’ requires a prior presence" when interpreting a provision of the Tort Claims Act governing immunity for claims based on the absence of a traffic signal. City of Grapevine v. Sipes , 195 S.W.3d 689, 695 (Tex. 2006) (interpreting TEX. CIV. PRAC. & REM. CODE § 101.060(a)(2) ).
As discussed in Part II below, we have identified an additional reason why certain nonresident defendants are not "absent" for tolling purposes even if they were previously in the state: the Legislature later passed long-arm statutes appointing agents for them in the state, so they are legally present through those agents. But these agency statutes do not apply to Texas residents like respondent, so they cannot affect the "absence" analysis for residents.
Because our cases confirm that "absence" means not being in a place where one has been or normally would be present, respondent Isabella Almanza was "absent" from the state temporarily while attending college, and the tolling statute applies. Absent a substantive change to the statute, what we said in 1858 should remain true in 2023: "[w]hether there should be such change in our law as not to allow mere temporary departures to suspend the statute, must be left to the wisdom of the legislature." Fisher , 21 Tex. at 560.
The Court notes that the current version of the tolling statute was the product of a non-substantive recodification in 1985 that modernized its language. A comparison of the text before and after the recodification confirms that none of the changes altered the meaning of the term "absence," which appears in both versions. Following the statute's original enactment in 1841, few changes were made to it until the recodification. The original statute provided:
Acts 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3257 (codified at Tex. Civ. Prac. & Rem. Code § 16.063 ).
If any person against whom there is or shall be cause of action, is or shall be without the limits of this republic at the time of the accruing of such action, or at any time during which the same might have been maintained, then the person entitled to such action shall be at liberty to bring the same against such person or persons after his or their return to the republic: and the time of such persons’ absence shall not be accounted, or taken as a part of the time limited by this act.
Act approved Feb. 5, 1841, 5th Cong., § 22, 1841 Tex. Gen. Laws 163, 170, reprinted in 2 H.P.N. Gammel, The Laws of Texas 1822-1897 , at 634 (Austin, Gammel Book Co. 1898).
Far from simply deleting two phrases, as the Court suggests (ante at 743), the recodification changed "without the limits of" to "absence from," which provides a stronger sense of being away from one's usual place as discussed above. And although the recodification dropped an arguably superfluous statement that the plaintiff would be at liberty to bring an action after the putative defendant's "return," it retained the finite concept of a "time" or "period of absence" and changed the title of the section to "Temporary Absence From State." These changes are compatible with our historical and plain-language understanding that "absence" means not being in a place where one could be expected.
As discussed further below, the recodification also changed the reference to the "time during which the [action] might have been maintained" to a requirement that the defendant be "a person against whom a cause of action may be maintained." Compare supra n.15 with Acts 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3257 (codified at Tex. Civ. Prac. & Rem. Code § 16.063 ).
II
Rather than focusing on the text of the statute, the Court turns to judicial decisions interpreting the Due Process Clause of the Federal Constitution to illustrate the "revolutionary change in the law of personal jurisdiction and service" that occurred after the statute's enactment. Ante at 739. But the ordinary meaning of the term "absence" in section 16.063 does not involve personal jurisdiction and service for the reasons just explained. It is unclear why the Court believes the Legislature did not intend for the term "absence" to "keep [its] meaning fixed, regardless of what federal courts might eventually say about the due-process clause." Tex. Dep't of State Health Servs. v. Crown Distrib. LLC , 647 S.W.3d 648, 675 (Tex. 2022) (Young, J., concurring). I see nothing in the statute to suggest that "Texas courts must resolutely interpret" the meaning of the term absence "to follow every federal fad." Id. at 675-76.
To the contrary, section 16.063 draws a distinction between a putative defendant's "absence" and whether "a cause of action may be maintained" against him or her, and it is the ordinary meaning of the latter phrase that encompasses concepts of personal jurisdiction and due process. Specifically, the statute makes tolling available during the "absence from this state of a person against whom a cause of action may be maintained." Id. An action cannot be maintained against a party over whom the court has no personal jurisdiction, whether due to lack of minimum contacts or lack of service. See Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 924-25, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (discussing when defendant has minimum contacts with state such that plaintiff "may maintain" suit there); Wilson v. Dunn , 800 S.W.2d 833, 836-37 (Tex. 1990) (holding jurisdiction to render judgment depends upon proper service). Thus, if anything, the revolutionary personal jurisdiction decisions the Court catalogs affect the meaning of the statutory phrase "a person against whom a cause of action may be maintained," not the meaning of "absence."
The Court responds that this phrase "merely identifies the person against whom suit is contemplated." Ante at 743 n.6. But the ability to "maintain" a cause of action means more than just whether the plaintiff has thought about filing suit, as shown by the Goodyear Dunlop decision cited above as well as our recent decision in Brown v. City of Houston . 660 S.W.3d 749, 752-53, 756-57 (Tex. 2023) (contrasting "maintain" an action with terms such as "file" or "initiate" or "commence" an action). Changes made to the statute also support reading "maintained" to mean more than "contemplated." As noted above, the statute originally referred to the "time during which the [action] might have been maintained." Supra n.15. But the Legislature later changed this reference into a requirement that the putative defendant be "a person against whom a cause of action may be maintained." Tex. Civ. Prac. & Rem. Code § 16.063.
Moreover, if the Court were correct that "absence from this state" also connotes a lack of jurisdiction, the statute would provide that tolling applies for the period that a person subject to jurisdiction (against whom a cause of action may be maintained) is not subject to jurisdiction (absent from this state). Because that interpretation makes nonsense of the statute, it cannot be right.
The Court also suggests that there have been changes in the law of service that should affect when a defendant is considered absent under the tolling statute. But Texas service rules have not changed in any way that would alter the meaning of the statutory term "absence" in this case. In 1840, the Republic Congress authorized service on a defendant "not found at his or her residence" by leaving the process "at the residence of such person" with a family member over 14 years old. In 1844, it authorized service on "a non-resident, within the limits of the Republic of Texas, ... by publishing a notice in [a specified] newspaper...." And in 1846, the First Legislature passed a law providing that when it is alleged or appears that "any defendant is not an inhabitant of the State, that he is absent therefrom, or that he is a transient person," the clerk can authorize the plaintiff "to cite the defendant by making publication of the citation in [a specified] newspaper ...."
Act approved Feb. 5, 1840, 4th Cong., § 2, 1840 Tex. Gen. Laws 88, 88, reprinted in 2 H.P.N. Gammel, The Laws of Texas 1822-1897 , at 267 (Austin, Gammel Book Co. 1898).
Act approved Feb. 3, 1844, 8th Cong., § 1, 1844 Tex. Gen. Laws 77, 77, reprinted in 2 H.P.N. Gammel, The Laws of Texas 1822-1897 , at 989 (Austin, Gammel Book Co. 1898).
Act approved May 13, 1846, 1st Leg., § 11, 1846 Tex. Gen. Laws 363, 366-67, reprinted in 2 H.P.N. Gammel, The Laws of Texas 1822-1897 , at 1672-73 (Austin, Gammel Book Co. 1898).
This last law confirms that the Legislature understands the difference between being "absent" from the state (the term used in the tolling statute) and being a "nonresident" or non-"inhabitant" of the state—a distinction that our rules maintain to this day. See TEX. R. CIV. P. 108, 109. And taken together, these laws show that both absent residents and nonresidents have long been subject to alternative methods of service. But none of the Court's older tolling cases discussed above so much as hinted that the availability of these service methods somehow rendered defendants present for purposes of preventing tolling under the predecessor to section 16.063.
Similarly, the more recent tolling cases on which the Court relies today do not affect the meaning of "absence" for Texas residents; instead, they address whether nonresidents are constructively present in Texas under the tolling statute when they have agents in the state under the long-arm statutes. In Vaughn v. Deitz , we held limitations was tolled for car crash claims against defendants who later moved out of state even though an automobile-specific long-arm statute deemed that the nonresident defendants had appointed a Texas agent for service of process. 430 S.W.2d 487, 490 (Tex. 1968) ; see TEX. CIV. PRAC. & REM. CODE § 17.062. In dissent, then-Justice Pope argued that this substituted-service statute "fix[es] a defendant's constructive presence in Texas." Vaughn , 430 S.W.2d at 493 (Pope, J., dissenting). "The validity of such statutes is grounded upon the idea that such defendants are legally present through an agent; hence, are not really absent." Id. at 491.
We later agreed with Justice Pope and discarded Vaughn in two cases involving long-arm substituted-service statutes applicable only to nonresidents. In Kerlin v. Sauceda , we held that section 16.063 tolling did not apply to a claim against a nonresident who "was present by doing business in this state as the [general long-arm] statute defines that term." 263 S.W.3d 920, 928 (Tex. 2008). And in Ashley v. Hawkins (also a car crash case), we overruled Vaughn and held that "a defendant is ‘present’ in Texas, for purposes of the tolling statute, if he or she is amenable to [substituted] service under the general longarm statute," which "establishes a nonresident's presence in the state for purposes of personal jurisdiction." 293 S.W.3d at 178-79.
The defendants in these two cases were nonresidents when suit was filed, and the linchpin of our analysis in each was that these defendants’ constructive presence was established by our long-arm statutes, which expressly apply only to nonresidents. See, e.g. , TEX. CIV. PRAC. & REM. CODE § 17.044(a)(1) (designating secretary of state as "an agent for service of process ... on a nonresident who" engages in business in the state or meets certain other requirements). The reason the long-arm statutes were relevant to our tolling analysis was not that they made defendants amenable to personal jurisdiction (a concept not mentioned in the tolling statute), but that they established the legal presence (non-"absence") of nonresident defendants by appointing an agent for them in the state.
In other words, Ashley and Kerlin used the in-state agency relationship created by the long-arm statutes to inform the meaning of "absence from the state" under the tolling statute. Understanding how choices made by the Legislature in one statute affect the meaning of a second statute is the everyday work of statutory interpretation, and I agree with the Court's opinions in those cases.
But this case is different in a fundamental way: there is no first statute applicable to Texas residents like Isabella that could inform the ordinary meaning of "absence" in the second (tolling) statute. The long-arm statutes have absolutely nothing to say about residents, all of whom are already subject to personal jurisdiction in Texas courts and to alternative methods of service—just as they have been since the tolling statute was first enacted over 180 years ago.
This gap reveals that the lead argument in the Court's analysis is misdirected. I agree with the Court that the tolling statute applies to both residents and nonresidents who were present in Texas at one time and later became "absent" from the state during the limitations period. Ante at 741. But the reason Ashley and Kerlin do not support the Court's position here is that the long-arm agency statutes we used to inform the meaning of "absent" in those cases apply only to defendants who are nonresidents when suit is filed.
In sum, nothing relevant has changed about what it means for a Texas resident to be "absen[t] from the state" under the tolling statute since we said in 1849 that absence bears its ordinary meaning, referring to "persons who have been present." Snoddy , 5 Tex. at 115-16. None of the developments in the law of personal jurisdiction and service surveyed by the Court apply to residents. And because residents are not covered by our long-arm substituted-service statutes, they cannot be constructively present through an agent designated by those statutes.
For these reasons, I disagree with the Court that this case is simply an application of Ashley . Ashley held only that a nonresident defendant "is ‘present’ in Texas, for purposes of the tolling statute, if he or she is amenable to service under the general longarm statute ...." 293 S.W.3d at 179. Because Isabella is a Texas resident not amenable to service under the long-arm statutes, Ashley and our other decisions addressing the meaning of "absence" in light of the agency created by the long-arm statutes do not apply to her.
III
Finally, construing "absence" in the tolling statute to mean not "subject to personal jurisdiction and amenable to service," as the Court does (ante at 743–44), renders section 16.063 a nullity. Tolling will never be relevant in cases where the defendant cannot be sued at all due to lack of personal jurisdiction, as no court will ever be called upon to decide whether statutory tolling would apply to a limitations defense raised by that defendant. And defendants who are subject to jurisdiction are always amenable to some form of service. As just explained, we have held that every nonresident defendant over whom a Texas court can exercise personal jurisdiction is "amenable to service" here because they are statutorily deemed to have appointed a Texas agent for substituted service of process. TEX. CIV. PRAC. & REM. CODE § 17.044(a)(1). Likewise, every Texas resident is amenable to service even when absent from the state or unable to be found, as our rules allow for citation by (for example) certified mail, electronic means, personal service out of state, and publication. See, e.g. , TEX. R. CIV. P. 106(a)(2), (b)(2), 108, 109.
Thus, under the Court's holding, no defendant against whom a cause of action may be maintained will ever be absent and tolling will never apply. That result is contrary to the canons against ineffectiveness, surplusage, and desuetude. See ANTONIN SCALIA & BRYAN A. GARNER , READING LAW: THE INTERPRETATION OF LEGAL TEXTS 63, 174, 336 (2012). Simply put, it is not our role to repeal section 16.063. In re Facebook , 625 S.W.3d at 101. Although we have recognized equitable tolling of limitations in certain contexts, the Legislature long ago intervened to set tolling policy by statute concerning "absence from this state." As we first explained over 160 years ago, the wisdom of repealing or amending the statute should be left to that branch. Fisher , 21 Tex. at 560.
The Court appears to concede as much, though it notes Isabella's argument regarding tolling for transient persons. Ante at 743. But Rule 109 provides for transient persons to be served by publication, so they are amenable to service and tolling would not apply under the approach adopted by the Court. See Tex. R. Civ. P. 109.
The Court disagrees, concluding that repeal is warranted because following the plain language of the tolling statute would be "unwise." Ante at 742–43 n.5. In support, it observes that the tolling statute does not create a bright-line rule, and that implementing it would "undercut ... the legislative determinations of what constitutes a reasonable amount of time in which to present a claim." Id. That is precisely what tolling statutes do, as the Legislature well knows. When the Legislature has chosen both to set a bright-line limitations period and to provide for tolling in certain cases, it is not for courts to conclude that the former choice is "better" and therefore override the latter. Id.
Though the Court does not do so here, courts in many states have rightly shied away from rendering their absence tolling statutes nugatory, instead adopting a narrow construction that allows tolling only where defendants cannot be located or serving them becomes a substantial burden. E.g., Medina v. Tate , 438 S.W.3d 583, 597 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (Harvey Brown, J., dissenting) (collecting cases). That approach would certainly be preferable to negating the statute altogether, as the Court does. But for the reasons I have explained, the more textually faithful approach is to hold that a defendant is absent when she is not in a place where she could be expected to be.
That approach would also address the Court's uncertainty concerns regarding the tolling rule chosen by the Legislature. Ante at 742–43 n.5.
I would hold that respondent Isabella Almanza was absent under the plain meaning of that term as this Court has long understood it while she was living out of state temporarily to attend college, and therefore section 16.063 tolled the statute of limitations for the period of her absence. Because the Court instead holds section 16.063 inapplicable and affirms the summary judgment in her favor based on limitations, I respectfully dissent.