Today’s revised opinion in Kerlin v. Concepcion Sauceda, No. 05-0653 addresses the Texas tolling statute — under what conditions the statute of limitations is tolled while a defendant is physically absent from the state. (The changes made by the revised opinion are noted in my previous post.)

The Court’s changes to the opinion seem directly responsive to
this post-decision amicus brief filed by the State of Texas.

The State was concerned about the effect of the Court’s broad language on a pending rehearing in the Fifth Circuit — Cadles of Grassy Meadows II v. Goldner and Goldner, in which the Fifth Circuit held Texas’s statute to be unconstitutional under the dormant Commerce Clause.

Some more details are available in this Texas Lawyer article, which summarized the relationship between these two cases (neither of which mention the other):

As noted in the 5th Circuit’s opinion in Cadles, the [Texas Office of the Attorney General (OAG)] argued that an out-of-state defendant can appoint a resident agent and not be subject to the state’s general jurisdiction. [Judge Jerry] Smith wrote that the OAG suggested that the Goldners could have included an appointment of an agent to accept service in the contract for the debt. But, as Smith noted, Texas courts have never addressed whether designating a resident agent in debt agreements can avoid tolling. That remains an open question, according to the opinion.

“So long as that is so, it would be mistaken to say that the Goldners were unburdened by the tolling provision just because they could have done something the Texas courts might — or might not — in the future deem sufficient to avoid tolling,” Smith wrote. Judges Eugene Davis and Harold DeMoss Jr. joined Smith in the decision. …

The OAG argues in its motion for rehearing to the 5th Circuit that if the state Supreme Court revises its decision in Kerlin so that the statute still applies when a defendant cannot be found for service of process, that will resolve the 5th Circuit’s concerns about the statute.

Although published before today’s revised opinion in Kerlin, the article contained this prediction about how these cases might play out:

Charles “Rocky” Rhodes, a South Texas College of Law professor and state constitutional law scholar, says he thinks the state Supreme Court’s decision in Kerlin makes sense. Rhodes, who says he has studied §16.063 and talks about the statute in his classes, points out that the Supreme Court tried to narrow what the statute does to avoid constitutional problems.

Rhodes says it is pretty unlikely that the state Supreme Court will revise its decision, as suggested by the OAG. But he says the 5th Circuit just might take another look at Cadles, in light of the state Supreme Court’s interpretation of the statute.