Galbraith Engineering Consultants, Inc. v. Pochucha (Tex. 2009),
No. 07-1051 (Tex. Jun. 26, 2009)(Medina)(statute of repose, statute of limitations)
County; 4th district (
04-07-00119-CV, 243 SW3d 138, 09-12-07)
motion for leave to file response to post submission brief granted
The Court reverses the court of appeals' judgment and renders judgment.
Medina delivered the opinion of the Court. [11-page opinion in pdf]


Section 33.004(e) of the Civil Practice and Remedies Code purports to revive claims
otherwise “barred by limitations” under certain limited circumstances. The issue in this summary
judgment appeal is whether this statute applies to revive a claim otherwise barred by a statute of
repose, as distinguished from a statute of limitations. The court of appeals concluded that the statute
was capable of reviving claims barred by either statutes of limitations or statutes of repose. 243
S.W.3d 138, 141. We conclude that the Legislature did not intend for this statute to revive claims
extinguished by a statute of repose. Accordingly, we reverse the court of appeals’ judgment and
render judgment dismissing the plaintiffs’ claim in this case.

* * *

Statutes of repose are created by the Legislature, and the Legislature may, of course, amend
them or make exceptions to them. The question here, however, is whether the Legislature intended
to make such an exception when it enacted section 33.004(e) as part of its proportionate
responsibility scheme, that is, did the Legislature intend for the revival statute to operate as a general
exception to periods of repose.

* * *

It is unclear here, however, whether the Legislature intended the term “limitations” in section
33.004(e) to apply narrowly to statutes of limitations or more broadly to include statutes of repose
because the term has been used in both contexts.4 When the plain language of a statute does not
CODE § 462.309(c) (concerning “Stay of Proceedings” and stating: “Statutes of limitation or repose are not tolled
the stay, and any action filed during the stay is stayed upon the filing of the action.”).
While the language in today’s statute i 5 s somewhat unclear, thus justifying cautious use of secondary
construction aids, we recently reaffirmed that such aids “cannot override a statute’s plain words.” In re Collins,
S.W.3d _____, _____ (Tex. 2009) (citing Alex Sheshunoff Mgmt.Servs., L.P. v. Johnson, 209 S.W.3d 644, 652
2006) (“Wherever possible, we construe statutes as written, but where enacted language is nebulous, we may
consult legislative history to help divine legislative intent.”)).

convey the Legislature’s apparent intent, we may resort to additional construction aids, such as the
objective of the law, the legislative history, the common law or former statutory provisions,
including laws on the same or similar subject, and the consequences of a particular construction.
Hughes, 246 S.W.3d at 626; TEX. GOV’T CODE § 311.023.5
The consequence of construing “limitations” broadly here informs our decision. Such a
construction would defeat the recognized purpose for statutes of repose, that is, the establishment
of a definite end to the potential for liability, unaffected by rules of discovery or accrual. Holubec,
111 S.W.3d at 37; Trinity River Auth., 889 S.W.2d at 261; Johnson, 774 S.W.2d at 654 n.1. As
already observed, statutes of repose create a substantive right to be free from liability after a
legislatively determined period. Trinity River Auth., 889 S.W.2d at 261; see also Cadle Co. v.
Wilson, 136 S.W.3d 345, 350 (Tex. App.—Austin 2004, no pet.). In contrast, statutes of limitations
are procedural devices operating as a defense to limit the remedy available from an existing cause
of action. Cadle Co., 136 S.W.3d at 350. A statute of repose thus represents the Legislature’s
considered judgment as to the inadequacy of the traditional statutes of limitations for some types of
claims. Sowders v. M.W. Kellogg Co., 663 S.W.2d 644, 647 (Tex. App.—Houston [1st Dist.] 1983,
writ ref’d n.r.e.). The statute of repose at issue here is no different.
The proportionate responsibility chapter was enacted in 1995 6 and amended in 2003. The 1995 legislation
contained a number of limitations on who might be named a responsible third party, such as a requirement for
jurisdiction and a potential for liability to the claimant. Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex.
Gen. Laws 971, 973 (amended 2003) (current version at TEX. CIV. PRAC. & REM . CODE § 33.011). Certain
potential parties, such as the claimant’s employer and the bankrupt were expressly excluded. Id. The 2003
substantially broadened the meaning of the term “responsible third party” to eliminate these restrictions. As one
commentator has observed: “The thrust of the 2003 statute is that the jury should allocate responsibility among all
persons who are responsible for the claimant’s injury, regardless of whether they are subject to the court’s
jurisdiction or whether there is some other impediment to the imposition of liability on them, such as a statutory
immunity.” WILLIAM V. DORSANEO III, TEXAS LITIGATIO N GUIDE § 291.03[2][b][i] at 291-24.1 (2009).

When first enacted in 1969, the stated purpose of this statute of repose was to eliminate
“unlimited time liability” against engineers or architects. Act of May 27, 1969, 61st Leg., R.S., ch.
418, § 2, 1969 Tex. Gen. Laws 1379, 1379 (amended 1985) (current version at TEX. CIV. PRAC. &
REM. CODE § 16.008). The statute has been amended since 1969 to extend protection to interior
designers and landscape architects, but its purpose of defining a definite period for liability to attach
has not changed. Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242,
3253 (amended 1997) (current version at TEX. CIV. PRAC & REM. CODE § 16.008); Act of May 26,
1997, 75th Leg., R.S., ch. 860, § 1, 1997 Tex. Gen. Laws 2738, 2738 (current version at TEX. CIV.
PRAC. & REM. CODE § 16.008).

The proportionate responsibility scheme of chapter 33, on the other hand, is a complex
statutory scheme for the comparative apportionment of responsibility among parties in most tort
actions in Texas. Although the scheme initially equated responsibility with liability to the plaintiff
or claimant, this is no longer the case.6 Thus, a defendant may designate a responsible third party
even though that party possesses a defense to liability, or cannot be formally joined as a defendant,
or both. Chapter 33 then is apparently unconcerned with the substantive defenses of responsible
third parties, who are defined to include “any person who is alleged to have caused or contributed
to causing in any way the harm for which recovery of damages is sought, whether by negligent act
or omission, by any defective or unreasonably dangerous product, by other conduct or activity that
violates an applicable legal standard, or by any combination of these.” TEX. CIV. PRAC. & REM.
CODE § 33.011(6). But we have found nothing in section 33.004 or the proportionate responsibility
scheme to convince us that the Legislature intended to revive claims extinguished by a statute of
repose. Cf. Shirley v. Reif, 920 P.2d 405, 412 (Kan. 1996) (holding that a claim barred by a statute
of repose cannot be revived by legislation enacted after the period of repose); Farber v. Lok-N-Logs,
Inc., 701 N.W.2d 368, 377-78 (Neb. 2005) (holding amendment to product liability statute of repose
could not resurrect action which prior version of statute of repose had already extinguished).
Because application of the revival statute in this instance effectively renders the period of repose
indefinite, a consequence clearly incompatible with the purpose for such statutes, we conclude that
the Legislature intended for the term “limitations” in section 33.004(e) to refer only to statutes of

* * * *
The judgment of the court of appeals is reversed and judgment is rendered dismissing the
Pochuchas’ claim against Galbraith because it is barred by the applicable ten-year statute of repose.