Sibel Onasis Ferrer v. Madalena Elizabeth Almanza, Isabella P. Almanza, and Albert Boone Almanza ( 2023 )

Supreme Court of Texas
══════════
No. 21-0513
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Sibel Onasis Ferrer,
Petitioner,
v.
Madalena Elizabeth Almanza, Isabella P. Almanza, and
Albert Boone Almanza,
Respondents
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On Petition for Review from the
Court of Appeals for the Seventh District of Texas
═══════════════════════════════════════
Argued October 6, 2022
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.
JUSTICE BUSBY filed a dissenting opinion.
Justice Lehrmann did not participate in the decision.
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
2
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
3
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).1 Ferrer petitioned for review.
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 (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
1Ferrer nonsuited her claims against Isabella’s father and Madalena,
making the summary-judgment order a final, appealable judgment.
4
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.2 Except for replacing
2 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).
5
“republic” with “state” and some minor grammatical edits, this tolling
statute remained unchanged for over 140 years.3
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
3When 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.
6
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 (1877); see also Burnham v. Superior
Ct., 495 U.S. 604, 616 (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(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 (1927).
Then, in 1945, the U.S. Supreme Court retreated from Pennoyer
entirely in International Shoe Co. v. Washington, 326 U.S. 310 (1945).
7
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 (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 (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., 35 So. 2d 344, 345 (Ala.
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’
8
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
9
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.
10
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
11
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
12
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
179.4
4 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
12–14 (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
13
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 16.063.5
‘contacts with the state sufficient to afford personal jurisdiction.’” (quoting
Kerlin, 263 S.W.3d at 927)).
5 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 10 (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
14
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 15–16 (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,
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)).
15
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.6
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
6 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 4 (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 3–4 (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.
16
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
17
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.
Rebeca A. Huddle
Justice
OPINION DELIVERED: April 28, 2023
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