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

Supreme Court of Texas
══════════
No. 21-0513
══════════
Sibel Onasis Ferrer,
Petitioner,
v.
Madalena Elizabeth Almanza, Isabella P. Almanza, and
Albert Boone Almanza,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Seventh District of Texas
═══════════════════════════════════════
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.1
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,”2
 “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,”3 and
 “[t]he Constitution . . . entrusts to [the legislative branch], not the
courts, the responsibility to decide whether and how to modernize
outdated statutes.”4
See GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 2
1
(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).
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866
2
(Tex. 1999).
3 In re Dep’t of Fam. & Protective Servs., 273 S.W.3d 637, 645 (Tex.
2009).
4 In re Facebook, Inc., 625 S.W.3d 80, 101 (Tex. 2021).
2
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.”5 In this ordinary sense, no one disputes that
a Texas resident is absent while away attending college in another state.
Yet today, the Court concludes that following the plain meaning
of the statutory text would be “unwise.”6 Instead, the Court looks to
what opinions have said about the statute’s supposed object7 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.8 Based on this evolution, the Court declares
that “absence from this state” now means not “subject to personal
jurisdiction and service” in the state.9
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
5 Absence, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/
us/dictionary/english/absence (last visited April 19, 2023); see also Part I, infra.
6 Ante at 14 n.5.
7 See ante at 6 (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)).
8 Id. at 7-11.
9 Id. at 17-18.
3
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
4
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 § 16.063.10 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.
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
10 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.
5
prior presence,”11 the “fact of not being where you are usually expected
to be,”12 or, in a legal sense, the “condition of being away from one’s usual
place of residence.”13 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.
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
11 Absence, WEBSTER’S DICTIONARY 1828, https://
webstersdictionary1828.com/Dictionary/absence (last visited Mar. 21, 2023).
12 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”).
13 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).
6
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, 176 S.W.2d 932, 934 (Tex.
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.
7
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.14 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:
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.15
14Acts 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242,
3257 (codified at TEX. CIV. PRAC. & REM. CODE § 16.063).
15Act 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).
8
Far from simply deleting two phrases, as the Court suggests (ante
at 16), 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.”16 These changes are
compatible with our historical and plain-language understanding that
“absence” means not being in a place where one could be expected.
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 7. 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.
16 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).
9
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 (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.”17
17The Court responds that this phrase “merely identifies the person
against whom suit is contemplated.” Ante at 16 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
10
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.18
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
. . . .”19 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
statue 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.
18 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).
19 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).
11
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 . . . .”20
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
20Act 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).
12
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
13
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 12. 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
14
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 17-18), 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).
15
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.21 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 560.22
21The Court appears to concede as much, though it notes Isabella’s
argument regarding tolling for transient persons. Ante at 15. 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.
22 The Court disagrees, concluding that repeal is warranted because
following the plain language of the tolling statute would be “unwise.” Ante at
14 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.16
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.23 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.
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.
J. Brett Busby
Justice
OPINION FILED: April 28, 2023
23 That approach would also address the Court’s uncertainty concerns
regarding the tolling rule chosen by the Legislature. Ante at 14 n.5.
17