IN THE SUPREME COURT OF TEXAS ══════════ No. 18-0386 ══════════
GUY JAMES GRAY, PETITIONER, v.
PATRICIA SKELTON, RESPONDENT ══════════════════════════════════════════ ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS ══════════════════════════════════════════
JUSTICE BLACKLOCK, joined by JUSTICE GREEN and JUSTICE BLAND, dissenting.
The Court’s decision announces a new rule for tolling the statute of limitations in
malpractice suits against criminal defense lawyers. As the Court describes its new rule,
“limitations should run during periods when neither a direct appeal nor a post-conviction
proceeding is pending.” Ante at __. I would not toll limitations during post-conviction habeas
corpus proceedings, which are potentially innumerable and interminable. Yet even under the rule
the Court announces, Patricia Skelton’s malpractice claim is barred by the two-year statute of
limitations. Six months elapsed between the exhaustion of appeal and Skelton’s filing of a habeas
corpus petition. Skelton then waited over eighteen months after winning habeas corpus relief to
sue for malpractice. Under the Court’s new rule, the limitations clock ran for more than two years,
which means the claim is barred by limitations. Instead of following the rule it announces and barring Skelton’s claims, the Court
immediately expands the rule such that Skelton’s claims are not barred. Under the expanded rule,
the limitations clock is tolled during direct appeal, during post-conviction proceedings, and while
Skelton waits to see whether the district attorney will re-prosecute her after vacatur of her
conviction. The Court achieves this result by characterizing the time period between a successful
habeas corpus action and a renewed prosecution as part of “post-conviction proceedings.” Id.
at __. Of course, the open-ended time between habeas corpus proceedings and a prosecutor’s
decision to renew or abandon prosecution is not itself a part of the habeas corpus proceedings.
There is no reason to continue to toll limitations after the defendant’s conviction is overturned. At
that point, the conviction’s bar to the malpractice suit has been eliminated, which also eliminates
any rationale for tolling. The result the Court reaches in Skelton’s case may seem fair to some,
but it creates an unusual and unjustifiable rule for future cases. I respectfully dissent.
***
Malpractice suits against lawyers must be commenced “not later than two years after the
day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE § 16.003. Skelton sued her
criminal defense lawyer nine years after her conviction for forgery of a will, at which point she
had discovered, or should have discovered, the wrongful act and injury. See Childs v. Hussacker,
974 S.W.2d 31, 40 (Tex. 1998) (applying discovery rule to legal malpractice claim). In most
contexts, that would be the end of the matter. Skelton’s claim would be seven years late. In the
attorney-malpractice context, however, this Court held in Hughes v. Mahaney & Higgins that the
statute of limitations on a legal malpractice claim is tolled “until all appeals on the underlying
claim are exhausted.” 821 S.W.2d 154, 157 (Tex. 1991). Applying the Hughes rule to Skelton’s
2 case, the two-year limitations clock would have started in March of 2011, when the Court of
Criminal Appeals declined to review her case, ending her appeal. Skelton did not sue her lawyer
until May of 2016, more than five years after exhaustion of appeals and over three years too late
under the Hughes rule.
Under the rule the Court announces today, however, Skelton’s claim is not three years late
because “the limitations period should be tolled during both direct appeals and post-conviction
proceedings.” Ante at __. In other words, “limitations should run during periods when neither a
direct appeal nor a post-conviction proceeding is pending.” Id. The Court suggests this holding
flows naturally from the Hughes rule, but it is actually a significant expansion of it. Under Hughes,
limitations are tolled on the malpractice claim “until all appeals on the underlying claim are
exhausted.” Hughes, 821 S.W.2d at 157. The Court applies Hughes tolling to habeas corpus
actions by conceptualizing habeas corpus as part of the underlying criminal case, a sort of super-
appeal available after “direct” appeals are exhausted. But a habeas corpus action is not an “appeal
of the underlying claim.” It is a collateral attack on a final judgment. See Ex Parte Gordon, 584
S.W.2d 686, 688 (Tex. 1979) (describing a habeas corpus action as “in the nature of a collateral
attack”). Habeas corpus petitions can be brought long after conviction is final and may be brought
one after another successively, in both state and federal court. They are much more akin to bills
of review and other collateral attacks on final judgments than to appeals. Id. Hughes tolling
normally applies “during appeal of the underlying claim,” not during post-appeal collateral
attacks. Applying Hughes tolling to habeas corpus proceedings expands the Hughes rule to include
a collateral attack that is not part of “the appeal of the underlying claim.”
3 The Court recently rejected another attempt to expand the Hughes tolling rule, instead
affirming the importance of a narrow, “bright-line” application of Hughes tolling in order “to
respect the legislative prerogative.” See Erikson v. Renda, 590 S.W.3d 557, 566–69 (Tex. 2019).
We should do so again in this case. The simplest reason to be reluctant to expand Hughes tolling
to habeas corpus proceedings is that the Legislature has decided to give malpractice plaintiffs two
years to bring their claims, not nine years as in this case, or even longer in future cases. Like all
statutes of limitation, this legislative choice guards against “the perils of adjudicating stale claims”
and “afford[s] comfort and repose to the defendant.” Godoy v. Wells Fargo Bank, 575 S.W.3d
531, 538 (Tex. 2019). Equitable tolling of statutes of limitation is commonly understood to be a
valid exercise of judicial power, 1 but it is nevertheless a departure from the legislative policy
choices reflected in statutes of limitation. Judicially crafted tolling rules mean stale claims may
have to be litigated, and defendants statutorily protected from those claims may lose their
protection. Thus, “judicial exceptions to limitations statutes cannot be undertaken lightly.”
Erikson, 590 S.W.3d at 569. Such exceptions should be employed with caution because of their
potential to undermine the Legislature’s policy decisions. Caution is particularly necessary when
the judiciary seeks to craft statute-like rules of tolling that essentially rewrite the statute of
limitations for a whole category of cases. There is a fine line between judicially amending a statute
of limitations, which is always out of bounds, and allowing equitable exceptions to a statute of
limitations, which is a historically accepted judicial power. Court-created tolling rules run the risk
1 “It is hornbook law that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute. Congress must be presumed to draft limitations periods in light of this background principle.” Young v.
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IN THE SUPREME COURT OF TEXAS ══════════ No. 18-0386 ══════════
GUY JAMES GRAY, PETITIONER, v.
PATRICIA SKELTON, RESPONDENT ══════════════════════════════════════════ ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS ══════════════════════════════════════════
JUSTICE BLACKLOCK, joined by JUSTICE GREEN and JUSTICE BLAND, dissenting.
The Court’s decision announces a new rule for tolling the statute of limitations in
malpractice suits against criminal defense lawyers. As the Court describes its new rule,
“limitations should run during periods when neither a direct appeal nor a post-conviction
proceeding is pending.” Ante at __. I would not toll limitations during post-conviction habeas
corpus proceedings, which are potentially innumerable and interminable. Yet even under the rule
the Court announces, Patricia Skelton’s malpractice claim is barred by the two-year statute of
limitations. Six months elapsed between the exhaustion of appeal and Skelton’s filing of a habeas
corpus petition. Skelton then waited over eighteen months after winning habeas corpus relief to
sue for malpractice. Under the Court’s new rule, the limitations clock ran for more than two years,
which means the claim is barred by limitations. Instead of following the rule it announces and barring Skelton’s claims, the Court
immediately expands the rule such that Skelton’s claims are not barred. Under the expanded rule,
the limitations clock is tolled during direct appeal, during post-conviction proceedings, and while
Skelton waits to see whether the district attorney will re-prosecute her after vacatur of her
conviction. The Court achieves this result by characterizing the time period between a successful
habeas corpus action and a renewed prosecution as part of “post-conviction proceedings.” Id.
at __. Of course, the open-ended time between habeas corpus proceedings and a prosecutor’s
decision to renew or abandon prosecution is not itself a part of the habeas corpus proceedings.
There is no reason to continue to toll limitations after the defendant’s conviction is overturned. At
that point, the conviction’s bar to the malpractice suit has been eliminated, which also eliminates
any rationale for tolling. The result the Court reaches in Skelton’s case may seem fair to some,
but it creates an unusual and unjustifiable rule for future cases. I respectfully dissent.
***
Malpractice suits against lawyers must be commenced “not later than two years after the
day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE § 16.003. Skelton sued her
criminal defense lawyer nine years after her conviction for forgery of a will, at which point she
had discovered, or should have discovered, the wrongful act and injury. See Childs v. Hussacker,
974 S.W.2d 31, 40 (Tex. 1998) (applying discovery rule to legal malpractice claim). In most
contexts, that would be the end of the matter. Skelton’s claim would be seven years late. In the
attorney-malpractice context, however, this Court held in Hughes v. Mahaney & Higgins that the
statute of limitations on a legal malpractice claim is tolled “until all appeals on the underlying
claim are exhausted.” 821 S.W.2d 154, 157 (Tex. 1991). Applying the Hughes rule to Skelton’s
2 case, the two-year limitations clock would have started in March of 2011, when the Court of
Criminal Appeals declined to review her case, ending her appeal. Skelton did not sue her lawyer
until May of 2016, more than five years after exhaustion of appeals and over three years too late
under the Hughes rule.
Under the rule the Court announces today, however, Skelton’s claim is not three years late
because “the limitations period should be tolled during both direct appeals and post-conviction
proceedings.” Ante at __. In other words, “limitations should run during periods when neither a
direct appeal nor a post-conviction proceeding is pending.” Id. The Court suggests this holding
flows naturally from the Hughes rule, but it is actually a significant expansion of it. Under Hughes,
limitations are tolled on the malpractice claim “until all appeals on the underlying claim are
exhausted.” Hughes, 821 S.W.2d at 157. The Court applies Hughes tolling to habeas corpus
actions by conceptualizing habeas corpus as part of the underlying criminal case, a sort of super-
appeal available after “direct” appeals are exhausted. But a habeas corpus action is not an “appeal
of the underlying claim.” It is a collateral attack on a final judgment. See Ex Parte Gordon, 584
S.W.2d 686, 688 (Tex. 1979) (describing a habeas corpus action as “in the nature of a collateral
attack”). Habeas corpus petitions can be brought long after conviction is final and may be brought
one after another successively, in both state and federal court. They are much more akin to bills
of review and other collateral attacks on final judgments than to appeals. Id. Hughes tolling
normally applies “during appeal of the underlying claim,” not during post-appeal collateral
attacks. Applying Hughes tolling to habeas corpus proceedings expands the Hughes rule to include
a collateral attack that is not part of “the appeal of the underlying claim.”
3 The Court recently rejected another attempt to expand the Hughes tolling rule, instead
affirming the importance of a narrow, “bright-line” application of Hughes tolling in order “to
respect the legislative prerogative.” See Erikson v. Renda, 590 S.W.3d 557, 566–69 (Tex. 2019).
We should do so again in this case. The simplest reason to be reluctant to expand Hughes tolling
to habeas corpus proceedings is that the Legislature has decided to give malpractice plaintiffs two
years to bring their claims, not nine years as in this case, or even longer in future cases. Like all
statutes of limitation, this legislative choice guards against “the perils of adjudicating stale claims”
and “afford[s] comfort and repose to the defendant.” Godoy v. Wells Fargo Bank, 575 S.W.3d
531, 538 (Tex. 2019). Equitable tolling of statutes of limitation is commonly understood to be a
valid exercise of judicial power, 1 but it is nevertheless a departure from the legislative policy
choices reflected in statutes of limitation. Judicially crafted tolling rules mean stale claims may
have to be litigated, and defendants statutorily protected from those claims may lose their
protection. Thus, “judicial exceptions to limitations statutes cannot be undertaken lightly.”
Erikson, 590 S.W.3d at 569. Such exceptions should be employed with caution because of their
potential to undermine the Legislature’s policy decisions. Caution is particularly necessary when
the judiciary seeks to craft statute-like rules of tolling that essentially rewrite the statute of
limitations for a whole category of cases. There is a fine line between judicially amending a statute
of limitations, which is always out of bounds, and allowing equitable exceptions to a statute of
limitations, which is a historically accepted judicial power. Court-created tolling rules run the risk
1 “It is hornbook law that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute. Congress must be presumed to draft limitations periods in light of this background principle.” Young v. United States, 535 U.S. 43, 49–50 (2002) (Scalia, J.) (citations and quotation marks omitted).
4 of crossing that line and intruding on the legislative power by replacing the Legislature’s
judgments about the appropriate limitations period with the Court’s. 2
The Hughes rule is well-established, but it is nevertheless a judicial departure from statute.
As the Court observed in Erikson, any expansion of it should therefore be undertaken cautiously.
Erikson, 590 S.W.3d at 569. The primary justification for Hughes tolling is to protect a malpractice
plaintiff from having to take a position in the malpractice case that is inconsistent with its position
in the underlying case in which the malpractice allegedly occurred. Hughes, 821 S.W.2d at 157.
Here, however, Skelton argued in her habeas corpus action that her lawyer provided ineffective
assistance of counsel. Many habeas corpus petitions contain such an argument. Obviously, there
is very little risk of conflicting positions as between a post-conviction claim for ineffective
assistance of counsel and a civil claim for legal malpractice. Hughes’s primary justification is
absent.
The Court’s rationale for expanding Hughes tolling to habeas corpus actions does not come
from Hughes itself. Instead, it comes from Peeler v. Hughes & Luce, under which malpractice
claims like Skelton’s are barred unless the plaintiff has been “exonerated” of the underlying crime.
909 S.W.2d 494, 495 (Tex. 1995). The Court reasons that because habeas corpus proceedings
might result in vacatur of the conviction, thereby eliminating the bar to a malpractice claim erected
by Peeler, the limitations clock for the malpractice claim should be tolled until we know whether
habeas corpus relief will be granted. In other words, because Skelton’s malpractice claim cannot
2 “The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.” TEX. CONST. art. II, § 1.
5 succeed unless she wins her habeas corpus action, her malpractice limitations period should be
tolled while her habeas corpus petitions are pending. But “preclusion of a legal remedy alone is
not enough to justify a judicial exception to the statute [of limitations].” Erikson, 590 S.W.3d at
569 (quoting Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex. 1977)). For all kinds of reasons, the
claim a plaintiff has on the day the limitations clock runs out might be a losing claim. Normally,
limitations are not tolled to wait and see whether the plaintiff may have a winning claim later. See
id. But that is essentially the approach the Court adopts today.
By all indications, Skelton got a raw deal. She seems to have been criminally prosecuted
and convicted for a non-malicious error of judgment that harmed nobody. Unlike the vast majority
of habeas corpus applicants, she won relief. One cannot help but wonder whether the facts of her
case and the possible merit of her malpractice claim influence the Court’s decision to adopt the
rule it announces today. But the rule will not just apply in cases like Skelton’s. It will toll
limitations in all potential malpractice cases for as long as habeas corpus petitions remain pending,
which is often a period of many years or even decades. See, e.g., Ex Parte Clay, 2018 WL 636737
(Tex. Crim. App. Jan. 31, 2018) (mem. op.) (granting relief fourteen years after conviction).
Habeas corpus proceedings at the state and federal level are subject to a dizzying panoply of
procedural restrictions, exceptions to the restrictions, and, of course, exceptions to the exceptions.
Each petition can take years to litigate, and multiple petitions are often filed successively. A
litigious convict can keep the habeas corpus ball in the air almost indefinitely, leaving criminal
defense lawyers under the shadow of potential malpractice claims for many years beyond the two-
year period envisioned by the Legislature.
6 There is another way to preserve potentially meritorious claims like Skelton’s without
automatically tolling the malpractice limitations period for thousands of habeas corpus petitioners,
most of whose petitions will be dismissed as groundless. Rather than toll limitations indefinitely
for every potential malpractice claimant who seeks post-conviction relief, the Court should simply
follow the Hughes rule and toll limitations only “until all appeals on the underlying claim are
exhausted.” Hughes, 821 S.W.2d at 157. After “direct” appeal is exhausted, a malpractice
claimant can file suit within the limitations period. Under Peeler, such a suit cannot succeed unless
the plaintiff is “exonerated.” 909 S.W.2d at 497–98. But a plaintiff with a pending habeas corpus
petition can seek abatement of its timely malpractice action. The court hearing the malpractice
case could then decide whether to grant the abatement based on the likelihood the habeas corpus
petition will succeed. If the petition has a reasonable chance of success, abatement should be
granted and the malpractice claim preserved. If the petition appears groundless, abatement should
be denied.
I do not suggest that such an abatement procedure for plaintiffs like Skelton would always
result in vindication of valid claims. In practice, some potentially valid malpractice claims would
not be allowed to proceed. But that is the nature of statutes of limitation. They often bar claims
that would otherwise be meritorious. The Legislature enacts them anyway. The possibility that
meritorious claims may be barred by limitations is not a sufficient reason to toll limitations.
Robinson, 550 S.W.2d at 20 (“The fact that a meritorious claim might thereby be rendered
nonassertable is an unfortunate, occasional by-product of the operation of limitations.”). In saving
one such claim, the Court creates a rule that will keep thousands of other groundless claims afloat
7 and keep criminal defense lawyers on the hook for liability well beyond the two-year period
provided by statute.
For those reasons, I dissent from the Court’s expansion of Hughes tolling to habeas corpus
proceedings. But the Court does not even follow its own rule. As announced, the rule is that
“limitations should run during periods when neither a direct appeal nor a post-conviction
proceeding is pending.” Ante at __. If that rule were applied to Skelton’s case, the limitations
clock ran for over two years; six months passed between the end of the appeal and the filing of the
habeas corpus petition, and more than eighteen months passed between the end of the habeas
corpus litigation and the filing of the malpractice claim. Skelton’s theory of the case, which the
Court rejects, is that a fresh, two-year limitations clock for malpractice claims should start
whenever post-conviction relief is granted. She brought her malpractice claim almost exactly two
years after the court of appeals granted post-conviction relief, apparently counting on being right
about how limitations would be calculated. The Court says she was wrong, but it nevertheless
allows her claim to proceed. It does so by saying that the time the district attorney takes deciding
whether to reinstate the prosecution after the award of habeas corpus relief is itself part of “post-
conviction proceedings.” Only after the district attorney decides not to re-prosecute would the
limitations clock start running again.
No valid justification exists for that rule. The open-ended time period in which the district
attorney decided how to react to the vacatur of Skelton’s conviction was not a “post-conviction
proceeding.” There technically remained a criminal indictment pending, but pendency of an
indictment is not part of the appeal or the habeas corpus litigation. Most importantly, there is no
8 more conviction, so the reason for tolling in the first place—to give the plaintiff a chance to clear
the conviction’s barrier to the malpractice claim—no longer exists. Under the Court’s
understanding of Peeler, the pathway for Skelton’s malpractice claim was cleared as soon as she
received habeas corpus relief. There is no reason to continue to toll the limitations period for an
open-ended time period that extends as long as the district attorney allows the charges to remain
pending. The Court suggests its approach avoids “putting Skelton’s limitations period at the
State’s mercy.” Ante at ___. But it does just the opposite. It is only the Court—not the parties,
the Hughes rule, or the dissent—that would tie the limitations period to the timing of the State’s
prosecutorial decisions. The Court’s odd conflation of the prosecutor’s decision-making process
with habeas corpus litigation has no grounding in the justifications for Hughes tolling, in the
applicable statute of limitations, or in the doctrinal baggage associated with Peeler. As far as I
can tell, it serves only one purpose—to save Skelton’s claims from untimeliness. That is a bad
reason to make a rule that now applies in all future cases. 3
I respectfully dissent.
____________________________________ James D. Blacklock Justice
OPINION DELIVERED: February 21, 2020
3 Because I conclude Skelton’s malpractice claim was barred by the statute of limitations no matter what Peeler’s “exoneration” requirement means, I would not reach the questions addressed in Part II of the Court’s opinion.