Supreme Court of Texas ══════════ No. 21-0513 ══════════ Sibel Onasis Ferrer, Petitioner, v. Madalena Elizabeth Almanza, Isabella P. Almanza, and Albert Boone Almanza, Respondents ═══════════════════════════════════════ On Petition for Review from the Court of Appeals for the Seventh District of Texas ═══════════════════════════════════════ JUSTICE BUSBY, dissenting. Discussions of statutory interpretation can seem frothy and academic, with law review articles, books, and panels by the dozen exploring the latest twist or seeking to create a new trend. But the subject of how courts should interpret statutes also has a very real effect on who exercises government power and which parties prevail in particular disputes. Not only is the choice of one interpretive method over another vitally important to the separation of legislative from judicial power, it alters the outcome of actual cases like this one. Specifically, this case illustrates the difference between Judge Guido Calabresi’s pragmatic common-law approach, which empowers courts to declare statutes they view as out of step with the contemporary legal landscape void for obsolescence, and Justice Antonin Scalia’s formal textualist approach, which adheres to the ordinary meaning of the words enacted and leaves statutory updating to the legislative branch.1 Observers of this Court’s jurisprudence can be forgiven for believing that we long ago chose the latter approach. After all, our cases are rife with statements like “when we stray from the plain language of a statute, we risk encroaching on the Legislature’s function to decide what the law should be,”2 “it is not for courts to decide if legislative enactments are wise or if particular provisions of statutes could be more effectively worded to reach what courts or litigants might believe to be better or more equitable results,”3 and “[t]he Constitution . . . entrusts to [the legislative branch], not the courts, the responsibility to decide whether and how to modernize outdated statutes.”4 See GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 2 1 (1982); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 9-12, 47 (Amy Gutmann ed., 1997); see also Cass R. Sunstein, Justice Scalia’s Democratic Formalism, 107 YALE L.J. 529, 529-531 (1997). Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 2 (Tex. 1999). 3 In re Dep’t of Fam. & Protective Servs., 273 S.W.3d 637, 645 (Tex. 2009). 4 In re Facebook, Inc., 625 S.W.3d 80, 101 (Tex. 2021). 2 Using this approach, the dictionary and our cases show that a statute tolling limitations for the period of a putative defendant’s “absence” from the state refers to the defendant “not being where [she is] usually expected to be.”5 In this ordinary sense, no one disputes that a Texas resident is absent while away attending college in another state. Yet today, the Court concludes that following the plain meaning of the statutory text would be “unwise.”6 Instead, the Court looks to what opinions have said about the statute’s supposed object7 and a survey of how the judge-made federal law of personal jurisdiction—a topic this statute does not …
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