
IN THE SUPREME COURT OF TEXAS
 
════════════
No. 08-0316
════════════
 
Methodist 
Healthcare System of San Antonio, Ltd., L.L.P.,
W.C. Schorlemer, M.D., and Robert Schorlemer, M.D., Petitioners,
 
v.
 
Emmalene Rankin, Respondent
 
════════════════════════════════════════════════════
On Petition for Review from 
the
Court of Appeals for the 
Fourth District of Texas
════════════════════════════════════════════════════
 
 
Argued September 9, 2009
 
 
            
Justice Willett delivered 
the opinion of the Court.
 
            
This case pits the ten-year statute of repose for healthcare-liability 
claims1 against the Texas Constitution’s Open 
Courts provision.2 We examine for the first time whether the 
latter saves a malpractice claim if the former has expired. The answer is 
no.
            
The Open Courts provision does not confer an open-ended and perpetual 
right to sue; it “merely gives litigants a reasonable time to discover their 
injuries and file suit.”3 The Legislature may set an absolute 
cut-off point for healthcare suits, as it has for other suits,4 so long as the repose period is a 
reasonable exercise of the Legislature’s police power to act in the interest of 
the general welfare. The ten-year statute of repose at issue adopts a 
constitutionally permissible policymaking judgment of the Legislature. 
Accordingly, we reverse the judgment of the court of appeals and render judgment 
for the petitioners.
I. 
Background
            
After experiencing abdominal pain, Emmalene 
Rankin consulted a physician in July 2006 and learned that a surgical sponge had 
been left inside her during a November 1995 hysterectomy. Rankin sued the 
hospital where the operation was performed, Southwest Texas Methodist Hospital, 
and two physicians, Robert and Wendell Schorlemer.
            
Rankin filed her suit, however, in October 2006, almost eleven years 
after the alleged negligence. The defendants moved for summary judgment, arguing 
that Rankin’s claim was barred by section 74.251(b) of the Civil Practice and 
Remedies Code, the ten-year statute of repose for healthcare-liability claims. 
Rankin submitted evidence that she did not know of the sponge and could not have 
discovered it in the exercise of reasonable care prior to expiration of the 
ten-year repose period.
            
Section 74.251(b) provides:
 
A 
claimant must bring a health care liability claim not later than 10 years after 
the date of the act or omission that gives rise to the claim. This subsection is 
intended as a statute of repose so that all claims must be brought within 10 
years or they are time barred.5
 
The trial court granted summary 
judgment, but the court of appeals reversed, holding the statute 
unconstitutional under the Open Courts provision.6 This appeal 
followed.
II. 
Analysis
            
When reviewing the constitutionality of a statute, we presume “that the 
Legislature has not acted unreasonably or arbitrarily; and a mere difference of 
opinion, where reasonable minds could differ, is not a sufficient basis for 
striking down legislation as arbitrary or unreasonable.”7 “The burden is on him who attacks a law 
for unconstitutionality and courts need not exert their ingenuity to find 
reasons for holding the law invalid.”8
            
Under the Open Courts provision, “[a]ll courts 
shall be open, and every person for an injury done him, in his lands, goods, 
person or reputation, shall have remedy by due course of law.”9 In Lebohm v. City of Galveston,10 the Court undertook its first in-depth 
analysis of the Open Courts provision. Justice Calvert, writing for a unanimous 
Court, formulated the test that we follow today:
 
[L]egislative action 
withdrawing common-law remedies for well established common-law causes of action 
for injuries to one’s “lands, goods, person or reputation” is sustained only 
when it is reasonable in substituting other remedies, or when it is a reasonable 
exercise of the police power in the interest of the general welfare. Legislative 
action of this type is not sustained when it is arbitrary or 
unreasonable.11
 
We have quoted this language with 
approval in later decisions.12
            
The statute at issue is a statute of repose, not a statute of 
limitations, and our analysis must appreciate that the two are not synonymous. 
We recently recognized that “there are significant differences between the 
two.”13 The Legislature stated explicitly that 
section 74.251(b) “is intended as a statute of repose” applicable to “all 
claims.”
            
The term “statute of repose” may not submit to a simple, universal 
definition. Generally, a statute of repose specifies a longer period than that 
found in the statute of limitations applicable to the same cause of 
action.14 Statutes of repose begin to run on a 
readily ascertainable date, and unlike statutes of limitations, a statute of 
repose is not subject to judicially crafted rules of tolling or 
deferral.15
            
Indeed, the key purpose of a repose statute is to eliminate uncertainties 
under the related statute of limitations and to create a final deadline for 
filing suit that is not subject to any exceptions,16 except perhaps those clear exceptions in 
the statute itself.17 Without a statute of repose, 
professionals, contractors, and other actors would face never-ending uncertainty 
as to liability for their work. Insurance coverage and retirement planning would 
always remain problematic, as would the unending anxiety facing potential 
defendants.18 In recognizing the absolute nature of a 
statute of repose, we have explained that “while statutes of limitations operate 
procedurally to bar the enforcement of a right, a statute of repose takes away 
the right altogether, creating a substantive right to be free of liability after 
a specified time.”19 The Legislature could reasonably 
conclude that the general welfare of society, and various trades and professions 
that serve society, are best served with statutes of repose that do not submit 
to exceptions even if a small number of claims20 are barred through no fault of the 
plaintiff, since “the purpose of a statute of repose is to provide ‘absolute 
protection to certain parties from the burden of indefinite potential 
liability.’”21 The whole point 
of layering a statute of repose over the statute of limitations is to “fix an 
outer limit beyond which no action can be maintained.”22 One practical upside of curbing 
open-ended exposure is to prevent defendants from answering claims where 
evidence may prove elusive due to unavailable witnesses (perhaps deceased), 
faded memories, lost or destroyed records, and institutions that no longer 
exist.
            
Rankin argues that the statute is unreasonable, and thus 
unconstitutional, because it cut off her right to sue before she had an 
opportunity to discover her injury. But Open Courts analysis is not quite this 
myopic; focusing solely on Rankin’s lost right to sue ignores the broader 
societal concerns that spurred the Legislature to act.
            
Section 74.251(b) was enacted in 2003 as part of House Bill 4, a 
top-to-bottom overhaul of Texas malpractice law to “make affordable medical and 
health care more accessible and available to the citizens of Texas,”23 and to “do so in a manner that will not 
unduly restrict a claimant’s rights any more than necessary to deal with the 
crisis.”24 The omnibus bill makes explicit findings 
describing the Legislature’s concern that a spike in healthcare-liability claims 
had fueled an insurance crisis that was harming healthcare delivery in 
Texas.25 The Legislature specifically found that 
the crisis had often made insurance unavailable at any price.26 The Legislature made these findings 
after conducting hearings and amassing evidence of the problems facing 
healthcare providers as a result of enduring liability claims for indeterminate 
periods of time. We have recognized “that the length of time that insureds are exposed to potential liability has a bearing on 
the rates that insurers must charge.”27
            
In enacting the repose piece of House Bill 4, lawmakers made a 
fundamental policy choice: the collective benefits of a definitive cut-off are 
more important than a particular plaintiff’s right to sue more than a decade 
after the alleged malpractice. A few plaintiffs such as Rankin will encounter 
the Legislature’s statutory roadblock, unable to bring claims through no fault 
of their own, but some defendants would likewise suffer unfortunate consequences 
were potential liability left indeterminate. The constitutional inquiry is 
whether the Legislature acted unreasonably or arbitrarily. We cannot brand as 
arbitrary lawmakers’ policy rationales for granting healthcare providers a 
substantive right to be free from liability after ten years, even if a plaintiff 
could have discovered her injury no sooner.
            
Surveying legislation around the nation, repose statutes for medical-negligence cases are commonplace. 
Many jurisdictions have enacted such statutes for malpractice claims,28 and Texas’ ten-year period is the 
longest of them all. Fourteen of these repose statutes are expressly 
inapplicable to foreign-object claims29 — not true of section 74.251(b) — and of 
twenty other statutes that apply equally to “sponge cases,” no statute gives 
plaintiffs more time to sue than the Texas statute.30
            
Other jurisdictions have rejected constitutional challenges to repose 
statutes in medical-malpractice cases premised on open courts provisions or 
similar provisions guaranteeing the right to a remedy,31 with two inapposite exceptions.32 And most of the failed challenges were 
to statutes with much shorter repose periods than in Texas.33 Rankin acknowledges there is no 
statutory exception in section 74.251(b) for foreign-object cases, but argues 
“the Legislature appropriately deferred to this 
Court to make an exception under the open courts provision on a case-by-case 
basis.” The Texas Legislature, unlike legislatures in other states,34 has not 
enacted an exception to its repose statute for foreign-body cases, nor is there 
any indication that it intended to give this Court authority to adopt such an 
exception on a case-by-case basis. On the contrary, the Legislature expressly 
characterized the ten-year statute as a statute of repose, and as explained 
above a statute of repose by its nature and purpose admits to no implied 
exceptions. This construction is particularly prudent given that the 
Texas repose statute for defective-product cases explicitly makes an exception 
for latent diseases that may stay hidden until after the repose period 
expires.35 By contrast, lawmakers made clear in 
section 74.251(b) that the ten-year period for medical-negligence claims applies 
to “all claims.”36
            
And of course, there is our own precedent, which rejected an Open Courts 
challenge to the ten-year statute of repose covering claims against architects 
and engineers, an area of law where injuries may also be difficult to 
discover.37 Before today’s case, numerous courts of 
appeals’ decisions have addressed the constitutionality of various Texas 
statutes of repose, and have upheld them every time.38
            
Section 74.251(b) is a reasonable exercise of the Legislature’s police 
power to provide a certain cutoff to claims after an ample period of ten years, 
five times longer than the general limitations period for bringing a negligence 
action,39 and five times longer than the general 
limitations period for bringing a healthcare-liability claim.40 As one court of appeals has noted in a 
decision where we found no reversible error, and as is apparent, “the ten-year 
limit is substantially more protective of individual rights than the two-year 
limit” found in the corresponding statute of limitations.41 We presume that the Legislature’s 
judgment was not an arbitrary or unreasonable exercise of its police power, and 
Rankin has offered no compelling argument or proof to the contrary.
            
The court of appeals held section 74.251(b) unconstitutional because it 
restricted Rankin’s right to sue “before she had a reasonable opportunity to 
discover the wrong and bring suit,”42 but the essential function of all 
statutes of repose is to abrogate the discovery rule and similar exceptions to 
the statute of limitations. The court of appeals saw little to distinguish 
statutes of limitations and statutes of repose.
            
A statute of repose, by design, creates a right to repose precisely where 
the applicable statute of limitations would be tolled or deferred. More to the 
point, a statute of repose serves no purpose unless it has this effect. 
To hold that a statute of repose must yield to the plaintiff’s inability to 
discover her injury would treat a statute of repose like a statute of 
limitations, and would effectively repeal this and all other statutes of repose. 
To quote our recent discussion in Galbraith Engineering Consultants, Inc. v. 
Pochucha:
 
Such a construction would defeat the recognized purpose 
for statutes of repose, . . . unaffected by rules of discovery 
or accrual. As already observed, statutes of repose create a substantive right 
to be free from liability after a legislatively determined period. In contrast, 
statutes of limitations are procedural devices operating as a defense to limit 
the remedy available from an existing cause of action. 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.43
 
            
Under the court of appeals’ decision, all plaintiffs have a “reasonable 
time” to discover their injuries,44 a holding that means never-ending 
exposure to liability, which in turn injects actuarial uncertainty into the 
insurance market. This indefiniteness wholly undermines the purpose of House 
Bill 4 and of statutes of repose generally: to declare a 
no-exceptions cut-off point and grant a substantive right to be free of 
liability. Repose statutes are not exempt from Open Courts challenges, but the 
reviewing court cannot ignore the Legislature’s broader reasons for limiting a 
litigant’s rights and its considered judgment in 
exercising its police power in the interest of the general welfare.
            
The court of appeals also relied on language from Trinity River 
Authority v. URS Consultants, Inc.–Texas,45 where we upheld a statute of repose, but 
noted:
 
[T]his Court’s decision in [Robinson v. Weaver, 
550 S.W.2d 18 (Tex. 1977)], illustrates the important public purpose underlying 
statutes of repose. We held in that case that the discovery rule does not apply 
to cases of medical misdiagnosis. Unlike malpractice based on leaving a foreign 
object in the patient’s body, or negligently performing a vasectomy, there is 
often no physical evidence establishing a misdiagnosis, thus increasing the risk 
of stale or even fraudulent claims.46
 
This language does not compel us to 
rule that foreign-object cases cannot constitutionally be subjected to a statute 
of repose in light of the Open Courts provision. First, while we referred 
generically to “statutes of repose” in the quotation, Robinson did not in 
fact concern a statute of repose at all, but a two-year statute of limitations. 
Second, Robinson did not involve a constitutional challenge; it did not 
decide whether the statute of limitations in issue could survive a challenge 
under the Open Courts provision or any other constitutional provision. 
Robinson held that the discovery rule applicable to sponge cases was not 
applicable to a medical misdiagnosis case. Third, our discussion of 
Robinson was in a section of Trinity River Authority discussing 
the constitutionality of the statute of repose under federal and state 
substantive due process requirements. The Court had already finished its 
analysis under the Open Courts provision and ultimately rejected all 
constitutional challenges to the statute. In short, the quotation, read in 
context, does not hold or fairly imply that the Court would view a ten-year 
statute of repose in foreign-object cases as necessarily vulnerable to an Open 
Courts challenge.
            
The Legislature could have excepted foreign-body 
cases from the statute of repose, as some states have done.47 But such an exception would introduce 
its own form of arbitrariness, since it would apply even to those foreign-body 
cases, such as needle cases, where the surgeon’s error is not particularly 
likely to go undetected for long periods. Regardless, the fact that the 
Legislature could have excepted foreign-body cases does 
not render the statute that was enacted unconstitutional. Our constitutional 
review asks only if the statute represents “a reasonable exercise of the police 
power in the interest of the general welfare,”48 a review that focuses on whether the 
legislation is “arbitrary or unreasonable.”49 As detailed 
above, the statute survives this test.
 
III. 
Conclusion
            
We have never declared a statute of repose unconstitutional and decline 
to do so today. Section 74.251(b)’s grant of absolute protection against 
indefinite potential liability does not violate the Texas Constitution. The Open 
Courts provision confers a constitutional right of access but not an everlasting 
one. Texas’ ten-year repose period will weigh heavily on a small number of 
plaintiffs like Rankin, who belatedly discover a res-ipsa-like injury. A statute of repose, by design, 
will always bar some otherwise-valid claims, but that result is the whole point 
of a statute of repose, and “is the price of repose.”50
            
The Legislature considered competing public and private interests and 
determined that ten years, the most generous repose period in the nation, is a 
reasonable final deadline regardless of accrual or discovery issues. Giving wide 
berth to the Legislature’s policy judgments, as we must, we cannot say lawmakers 
offended the Constitution by cutting off malpractice claims after giving 
claimants a decade to bring suit. We thus reverse the court of appeals’ judgment 
and render a take-nothing judgment in favor of the petitioners.
 
 
 
                                                                        
____________________________
                                                                        
Don R. Willett
                                                                        
Justice
 
 
OPINION 
DELIVERED: March 12, 2010__






1 Tex. Civ. Prac. & Rem. 
Code § 
74.251(b).

2 Tex. Const. art. I, § 
13.

3 Yancy v. 
United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 784 (Tex. 
2007).

4
See Tex. Civ. Prac. & 
Rem. Code §§ 16.008 (repose for actions against architects, engineers, 
interior designers, and landscape architects), 16.009 (repose for actions 
against a person who constructs or repairs an improvement to real property), and 
16.011 (repose for actions against a registered public surveyor or a licensed 
state land surveyor).

5 Tex. Civ. Prac. & Rem. 
Code § 
74.251(b).

6 261 S.W.3d 93, 103.

7 Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 
1968).

8 Tex. Nat’l Guard Armory Bd. v. McCraw, 126 S.W.2d 627, 634 (Tex. 
1939).

9 Tex. Const. art. I, § 
13.

10 275 S.W.2d 951 (Tex. 1955).

11
Id. at 955 (on rehearing).

12 Trinity River Auth. v. URS Consultants, 
Inc.-Tex., 889 S.W.2d 259, 262 (Tex. 1994); Sax v. Votteler, 648 S.W.2d 661, 665 (Tex. 1983); Waites v. 
Sondock, 561 S.W.2d 772, 774 (Tex. 
1977).

13 Galbraith Eng’g 
Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 866 
(Tex. 2009).

14
See Tex. Civ. Prac. & Rem. Code §§ 16.008 
(ten-year repose statute for actions against architects, engineers, interior 
designers, and landscape architects), 16.009 (ten-year repose statue for actions 
against a person who constructs or repairs an improvement to real property), and 
16.011 (ten-year repose statute for actions against a registered public surveyor 
or a licensed state land surveyor).

15 E.g., Tex. Civ. Prac. & Rem. Code § 
16.011(a)(ten-year repose statute for actions against a registered public 
surveyor or a licensed state land surveyor begins to run on “the date the survey 
is completed” for surveys completed on or after September 1, 1989); see 
also 51 Am. Jur. 2d Limitation of Actions § 12 (2000) 
(“[A] statute of repose extinguishes a cause of action after a fixed period of 
time (usually measured from the delivery of the product, the completion of the 
work, or some other action of the defendant), regardless of when the cause of 
action accrued.”); Trinity River Auth., 889 S.W.2d at 261 (“Unlike 
traditional limitations provisions, which begin running upon accrual of a cause 
of action, a statute of repose runs from a specified date without regard to 
accrual of any cause of action.”).

16
See 51 Am. Jur. 2d
Limitation of Actions §§ 12, 18 (2000) (explaining that unlike statutes 
of limitations, repose statutes “reflect the legislative conclusion that a point 
in time arrives beyond which a potential defendant should be immune from 
liability for past conduct”).

17 E.g., Tex. Civ. Prac. & Rem. Code § 16.011(b) 
(providing that if the claimant presents a written claim during the 10-year 
repose period, the period is extended for two years from the date the claim is 
presented).

18 See 
Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir. 
1987) (“In contrast to statutes of limitation, statutes of repose serve 
primarily to relieve potential defendants from anxiety over liability for acts 
committed long ago.”).

19 Galbraith Eng’g, 290 S.W.3d at 866.

20 Rankin 
offered no evidence that a significant number of claims are barred by the 
operation of the repose statute in issue. One study has determined that 
ninety-nine percent of claims brought against OB-GYNs 
are reported within nine years. Michael S. Hull et al., House Bill 4 and 
Proposition 12: An Analysis with Legislative History, Part Three, 36 Tex. Tech. L. Rev. 169, 188 (2005). In upholding 
a ten-year statute of repose applicable to architects and engineers as striking 
“a fair balance between the legislative purpose of protecting against stale 
claims and the rights of litigants to obtain redress for injuries,” we cited a 
study finding that 99.6 percent of claims against architects were brought within 
ten years. Trinity River Auth. v. URS Consultants, 
Inc.-Tex., 889 S.W.2d 259, 264 & n.6 (Tex. 1994).

21
Galbraith Eng’g, 290 S.W.3d at 866 
(quoting Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003)).

22 Holubec, 111 S.W.3d at 
37.

23 Act of 
June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(5), 2003 Tex. Gen. Laws 847, 884–85.

24
Id. § 10.11(b)(3).

25 Id. § 10.11(a).

26
Id. § 10.11(a)(10).

27 Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 
1983).

28 See 
infra notes 29–30.

29 Cal. 
Civ. Proc. Code § 340.5 (West 2010); Colo. Rev. Stat. § 13-80-102.5(3)(b) (2009); Ga. Code 
Ann. § 9-3-72 (2009); Iowa Code 
Ann. § 614.1(9)(a) (West 2010); Mass. Gen. Laws Ann. ch. 260, § 4 (West 2010); Miss. Code Ann. § 15-1-36(2)(a) (2009); Ohio 
Rev. Code Ann. § 2305.113(D)(2) (LexisNexis 
2010); 40 Pa. Cons. 
Stat. Ann. § 1303.513(b) (West 2009); 
S.C. Code Ann. § 15-3-545(B) (2009); 
Tenn. Code Ann. § 29-26-116(a)(4) 
(2009); Utah Code Ann. § 
78B-3-404(2)(a) (2009); Vt. Stat. Ann. tit. 12, § 521 (2009); Wash. Rev. Code Ann. § 4.16.350 (West 2010); Wis. Stat. 
Ann. § 893.55(1m)(3) (West 2009).

30 Three 
states and one territory have a three-year statute of repose. Conn. Gen. Stat. Ann. § 52-584 (West 2005); La. Rev. Stat. Ann. § 9:5628(a) 
(2010); Nev. Rev. Stat. Ann. § 41A.097(2) (LexisNexis 2009); Guam Code Ann. tit. 7, § 11308 (2009). Four states have a four-year statute of 
repose. Ala. Code § 6-5-482 (2009); Fla. Stat. 
Ann. § 95.11(4)(b) (West 2009); 735 Ill. Comp. Stat. Ann. 
5/13-212(a) (West 2010); Kan.
Stat. Ann. § 60-513(c) 
(2010). Four states have a five-year statute of repose. 
Ky. Rev. Stat. Ann. 
§ 413.140(2) (LexisNexis 2010); Md. Code 
Ann., Cts. & Jud. Proc. § 
5-109(a)(1) (LexisNexis 
2010); Mont. Code Ann. § 
27-2-205(1) (2009); Or. Rev. Stat. § 12.110(4) 
(2007). Three states have a six-year statute of repose. 
Haw Rev. Stat. Ann. 
§ 657-7.3 (LexisNexis 2009); Mich. Comp. Laws Ann. § 600.5838a(2) (West 2000); N.D. Cent. Code § 28-01-18(3) (2009). Five states other 
than Texas have a ten-year statute of repose. Mo. Ann. Stat. § 516.105(3) (West 
2009); N.C. Gen. Stat. § 1-15(c) 
(2009); Neb. Rev. Stat. Ann. § 44-2828 (LexisNexis 
2009); Va. Code Ann. § 8.01-243(C) (2009); W. Va. Code Ann. § 55-7B-4(a) (LexisNexis 2009).

31
See Aicher v. Wis. Patients Comp. Fund, 613 N.W.2d 
849 (Wis. 2000); Schendt v. Dewey, 520 N.W.2d 
541, 547 (Neb. 1994); Choroszy v. Tso, 647 A.2d 803 (Me. 1994); Kush v. Lloyd, 616 So.2d 415, 419-22 (Fla. 
1992); Hawley v. Green, 788 P.2d 1321, 1323-24 (Idaho 1990); Mega v. 
Holy Cross Hosp., 490 N.E.2d 665, 668-71 (Ill. 1986); Barlow v. Humana, 
Inc., 495 So.2d 1048 (Ala. 1986); Crier v. Whitecloud, 496 So.2d 305, 309-10 (La. 1986); Hill v. 
Fitzgerald, 501 A.2d 27, 33-35 (Md. 1985); Dunn v. St. Francis Hosp., 
Inc., 401 A.2d 77, 80-81 (Del. 1979); Harrison v. Schrader, 569 
S.W.2d 822, 827-28 (Tenn. 1978); Barke v. 
Maeyens, 31 P.3d 1133, 1136-39 (Or. Ct. App. 2001); Golden v. Johnson Mem’l 
Hosp., Inc., 785 A.2d 234, 243-46 (Conn. App. Ct. 2001); Plummer v. Gillieson, 692 N.E.2d 528, 532 (Mass. App. Ct. 
1998). See also Robin D. Miller, Annotation, Validity of 
Medical Malpractice Statutes of Repose, 5 
A.L.R. 6th 133, 161-63 (2005).
                
    We note that in some states, the statute of repose 
provides minors a longer period to bring claims; they may sometimes bring claims 
even after the period of repose has elapsed. See, e.g., Haw Rev. Stat. Ann. § 657-7.3 (LexisNexis 2009) (providing that minors may bring claims up 
until six years after their tenth birthday, regardless of the normal six-year 
repose period).

32
McCollum v. Sisters of Charity of Nazareth Health Corp., 799 
S.W.2d 15, 18–19 (Ky. 1990) (examining only whether a common-law right of action 
existed prior to the passage of adoption of the Kentucky Constitution, but not 
examining whether the statute was reasonable, as Texas does); Hardy v. VerMeulen, 512 N.E.2d 626, 627–28 (Ohio 1987) (examining 
solely whether the plaintiff had a remedy at the time he discovered his injury 
without an inquiry into the reasonableness of the statute).

33
See, e.g., Aicher v. Wis. 
Patients Comp. Fund, 613 N.W.2d 849 (Wis. 2000) (five-year statute); Schendt v. Dewey, 520 N.W.2d 541, 547 (Neb. 
1994) (ten-year statute); Choroszy v. Tso, 647 A.2d 803 (Me. 1994) (three-year statute); Kush v. Lloyd, 616 So.2d 415, 419-22 (Fla. 
1992) (four-year statute); Hawley v. Green, 788 P.2d 1321, 1323-24 (Idaho 
1990) (two-year statute); Mega v. Holy Cross Hosp., 490 N.E.2d 665, 
668-71 (Ill. 1986) (four-year statute); Barlow v. Humana, Inc., 495 So.2d 
1048 (Ala. 1986) (four-year statute); Crier v. Whitecloud, 496 So.2d 305, 309-10 (La. 1986) (three-year 
statute); Hill v. Fitzgerald, 401 A.2d 27, 33-35 (Md. 1985) (five-year 
statute); Dunn v. St. Francis Hosp., Inc., 401 A.2d 77, 80-81 (Del. 1979) 
(three-year statute); Harrison v. Schrader, 569 S.W.2d 822, 827-28 (Tenn. 
1978) (three-year statute); Barke v. Maeyens, 31 P.3d 1133, 1136-39 (Or. Ct. App. 2001) 
(five-year statute);}highlight2 Golden v. 
Johnson Mem’l Hosp., Inc., 785 A.2d 234, 243-46 (Conn. App. Ct. 2001) 
(three-year statute); Plummer v. Gillieson, 692 N.E.2d 528, 532 (Mass. App. Ct. 1998) 
(seven-year statute).

34 See 
supra note 29.

35 Tex. Civ. Prac. & Rem. Code § 
16.012(d)(3).

36 Tex. Civ. Prac. & Rem. Code § 74.251(b) 
(“This subsection is intended as a statute of repose so that all claims must be 
brought within 10 years or they are time barred.”).

37 Trinity River Auth. v. URS Consultants, 
Inc.-Tex., 889 S.W.2d 259, 261–63 (Tex. 1994). However, Trinity 
River Authority held that the statute of repose did not violate the Open 
Courts provision because it did not abrogate a well-established common-law cause 
of action, an issue we do not reach. Id. at 
262–63.

38 See 
Zaragosa v. Chemetron Invs., Inc., 122 S.W.3d 341 (Tex. App.—Fort Worth 2003, 
no pet.); Gordon v. W. Steel Co., 950 S.W.2d 743 (Tex. App.—Corpus 
Christi 1997, writ denied); Dallas 
Mkt. Ctr. Dev. Co. v. Beran & Shelmire, 824 S.W.2d 218 (Tex. App.—Dallas 1991, writ 
denied); Barnes v. J.W. Bateson Co., 755 S.W.2d 
518 (Tex. App.—Fort Worth 1988, no writ); Dubin v. Carrier Corp., 731 S.W.2d 651 (Tex. 
App.—Houston [1st Dist.] 1987, no writ); Suburban Homes v. Austin-Nw. Dev. Co., 734 S.W.2d 89 (Tex. App.—Houston [1st 
Dist.] 1987, no writ); Nelson v. Metallic-Braden Bldg. Co., 695 S.W.2d 
213 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d
n.r.e.); McCulloch v. Fox & Jacobs, Inc., 
696 S.W.2d 918 (Tex. App.—Dallas 1985, writ ref’d
n.r.e.); Sowders 
v. M.W. Kellogg Co., 663 S.W.2d 644 (Tex. App.—Houston [1st Dist.] 1983, 
writ ref’d n.r.e.); 
Ellerbe v. Otis Elevator Co., 618 S.W.2d 870 (Tex. App.—Houston [1st 
Dist.] 1981, writ ref’d n.r.e.); Hill v. Forrest & Cotton, Inc., 555 
S.W.2d 145 (Tex. Civ. App.—Eastland 1977, writ ref’d n.r.e). In addition, the 
United States Court of Appeals for the Fifth Circuit has at least twice upheld 
other Texas statutes of repose against Open Courts challenges. See Burlington 
N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 
F.3d 355, 361 (5th Cir. 2005) (holding fifteen-year statute of repose for 
certain defective-products claims does not violate Open Courts provision); 
Brown v. M.W. Kellogg Co., 743 F.2d 265, 268 (5th Cir.1984) (holding that 
the ten-year statute of repose for architects, engineers, and builders does not 
violate the Open Courts provision).

39 Tex. Civ. Prac. & Rem. Code 
§ 16.003.

40 Id. § 74.251(a).

41
McCulloch, 696 S.W.2d at 925.

42 261 S.W.3d at 96.

43 290 S.W.3d 863, 868 (Tex. 2009) (citations 
omitted).

44 261 S.W.3d at 103.

45 889 S.W.2d 259 (Tex. 1994).

46 261 
S.W.3d at 100 (emphasis omitted) (quoting Trinity River Auth., 889 S.W.2d 
at 263–64) (citations omitted)).

47 See 
supra note 29.

48 Lebohm v. City of Galveston, 275 S.W.2d 951, 
955 (Tex. 1955) (on rehearing).

49 Id.

50 S.V. v. R.V., 933 S.W.2d 1, 23 (Tex. 
1996).