Ashley v. Hawkins (Tex. 2009),
No. 07-0572 (Tex. Jun. 26, 2009)(Green)(statute of limitations, no tolling when car wreck defendant out of
state, but subject to being served)(
failure to exercise due diligence in serving defendant)
GAIL ASHLEY v. DORIS D. HAWKINS; from Montgomery County; 9th district (
09-06-00359-CV, ___ SW3d ___,
opinion in the Beaumont court of appeals] 06-07-07)   
The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.
Green delivered the opinion of the Court. [10-page pdf opinion]
Electronic Briefs in ASHLEY v. HAWKINS (Tex. 2009)

In this case, we consider whether section 16.063 of the Texas Civil Practice and Remedies
Code tolls the limitations period when a defendant leaves Texas following a motor vehicle collision,
but is otherwise amenable to out-of-state service. We hold, consistent with our recent decision in
Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008), that section 16.063 does not apply in these
circumstances, and we also overrule our decision in Vaughn v. Deitz, 430 S.W.2d 487 (Tex. 1968).
We, therefore, reverse the court of appeals’ judgment and reinstate the trial court’s grant of summary
* * *
We agree with the trial court and hold that, as a matter of law, Hawkins’ responses do not
create a fact issue as to diligence, as this eight-month gap in time is left unexplained. See, e.g., Gant,
786 S.W.2d at 260. Hawkins stated that she spent approximately twenty hours searching for Ashley,
although she does not specify when this time was spent. Either these twenty hours were expended
early on, in which case, the diligence of the search later ceased; or, these hours were spread over
eight months, in which case the search was never diligent. Either way, Hawkins failed to meet her
As a comparison, in Proulx, we held that a plaintiff’s thirty-seven attempts at five different
addresses over the course of nine months exhibited continuing diligence to preclude summary
judgment. 235 S.W.3d at 217. After numerous unsuccessful attempts at effectuating service, the
plaintiff in Proulx sought substitute service