dissenting.
I respectfully dissent. I would affirm the summary judgment on the sole ground that, as a matter of law, section 16.063 does not apply to the uneontroverted facts of this case. Section 16.063, the suspension statute, 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 Ann. § 16.063 (Vernon 1986).
Historically, the purpose of this suspension statute is to protect domestic creditors from the inconvenience and loss occasioned by the absence, and consequent immunity, of debtors from the State, rendering them unamenable to service of process. Gibson v. Nadel, 164 F.2d 970 (5th Cir.1947); see also Harris v. Columbia Broadcasting Sys., Inc., 405 S.W.2d 613, 617 (Tex.Civ.App.—Austin 1966, writ ref’d n.r.e.). Suspension statutes are generally designed to allow plaintiffs the same time to commence their actions against absent defendants as they would have had if the defendants were not absent and were residing in the State. 54 C.J.S. Limitations of Actions § 100 (1987). Practically speaking, these statutes prevent defendants from leaving the State and remaining away until limitations has run, enabling them to return later and interpose limitations as a defense. Id. Unlike the majority, I would limit the statute’s application to those cases in which this particular purpose is served.
The suspension statute applies to defendants who are “without the limits of this State,” referring to the absence of defendants from the territorial limits of the State. Vaughn v. Deitz, 430 S.W.2d 487, 490 (Tex.1968). Consequently, to avoid the tolling of limitations, Saavedra had the burden to show his presence within the territorial limits of the State for the limitations period.
In the present case, the summary judgment evidence shows that Saavedra occasionally crossed the border and ventured into Mexico, never longer than a few hours. The evidence also established that he was employed as a Brownsville Police Officer and maintained his permanent residence in Brownsville during the entire limitations period. It is also clear that Ardila had this information, yet wholly failed to file suit or attempt to serve Saavedra until after the statute of limitations had run.
Under the facts of the present case and in furtherance of the suspension statute’s purpose, I would hold that the statute applies only when service has been attempted during the limitations period but is unsuccessful by virtue of the defendant’s absence from the State. Thus, it is likely that temporary absences from the State will not, as well they should not, implicate the tolling statute.
If for no other reason, my interpretation of section 16.063 simply makes good sense. To hold otherwise is to subject resident defendants, venturing across the border for an occasional margarita, to interminable delays in the prosecution of suits against them, all the while memories fading and witnesses dying.