United States: Beware: "Absence From This State" May Not Really Toll Limitations After All.

Familiar to most Texas practitioners is the rule of Section 16.063 of the Civil Practice and Remedies Code:

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.

One might assume that this statute means precisely what it says—that the running of limitations is tolled against a defendant while that defendant is absent from Texas. But courts have increasingly found occasions to refuse to construe it so plainly.

Nonresidents

In 2008, the Texas Supreme Court held that the tolling statute does not apply to nonresidents who are amenable to service of process under the long-arm statute.¹ The court theorized that if a defendant is capable of being served, it is "present" in Texas for purposes of the statute.

This ruling brought Texas in line with the majority of states and avoided concerns of the U.S. Supreme Court that applying such statutes to nonresidents could be an unconstitutional interference in interstate commerce.

Texas Residents

Until recently, Section 16.063 unquestionably applied to Texas residents: Limitations did not run while the resident was temporarily out of state.

But following the rulings applicable to nonresidents, two Texas appeals courts (Dallas and Houston's Fourteenth) have held that a Texas resident's "intermittent excursions" from the state do not deprive Texas of personal jurisdiction and thus do not constitute "absence" so as to toll limitations.² Houston's First Court of Appeals, creating an interesting split of opinion, disagrees, holding that the statute means what it says as to Texas residents.³

Until the Texas Supreme Court speaks on this issue, attorneys should be wary of relying on the statute to toll limitations when a Texas resident is temporarily absent from the state.

The Bottom Line

Despite the plain language of the statute:

(1)   It does not apply to nonresidents.

(2) It may not apply to Texas residents either, particularly to toll limitations during short absences from the state, and especially in the Dallas and Houston court of appeals districts.

Footnotes

1 Kerlin v. Sauceda, 263 S.W.3d 920, 927 (Tex. 2008); see also Ashley v. Hawkins, 293 S.W.3d 175, 178-79 (Tex. 2009).

2 Liptak v. Brunson, No. 05-11-01209-CV, 2013 Tex. App. LEXIS 7014, at *11-13 (Tex. App.—Dallas June 7, 2013, no pet. h.); Zavadill v. Safeco Ins. Co. of Illinois, 309 S.W.3d 593, 595-96 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).

3 Medina v. Tate, No. 01-12-00496-CV, 2013 Tex. App. LEXIS 8310 (Tex. App.—Houston [1st Dist.] July 9, 2013, no pet. h.).

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