      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00745-CV



                       Francis C. Bashaw a/k/a Bubba Bashaw, Appellant

                                                   v.

 The State of Texas and Carole Keeton Strayhorn, in her Official Capacity as Comptroller
                    of Public Accounts of the State of Texas, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
        NO. GN500959, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING



                               MEMORANDUM OPINION


                This case concerns whether appellant Francis Bashaw’s bankruptcy proceeding tolled

the statute of limitations for filing a petition for bill of review challenging a default judgment entered

against him in a motor vehicle sales tax collection suit. Concluding that the statute of limitations

was not tolled, we affirm the trial court’s take-nothing summary judgment on Bashaw’s

action for a bill of review.

                On August 11, 2000, the Comptroller sued Bashaw for delinquent motor vehicle sales

taxes. A default judgment was entered against Bashaw for the amount of the delinquent taxes on

September 21, 2000. Bashaw filed for Chapter 7 bankruptcy protection on February 1, 2002, and

received a discharge on October 8, 2003. On March 30, 2005, Bashaw filed a petition for bill of

review challenging the default judgment obtained by the Comptroller in September 2000 for the

delinquent taxes. The Comptroller responded with a motion for summary judgment, asserting that
Bashaw was barred from recovery by the four-year statute of limitations governing bills of review.

The trial court granted summary judgment in favor of the Comptroller on the basis of limitations.

                On appeal, Bashaw asserts that the automatic stay provision of the United States

Bankruptcy Code tolled the statute of limitations for filing his bill of review. Section 362 of the

bankruptcy code automatically stays the continuation of a judicial action on a claim “against the

debtor.” See 11 U.S.C.A. § 362. Characterizing the bill of review as a continuation of the tax

collection suit, Bashaw contends that the automatic stay tolled the statute of limitations for filing his

bill of review for the 20 months during which his bankruptcy proceeding was pending. The

Comptroller responds that the automatic stay provision of the bankruptcy code does not apply to

Bashaw’s bill of review because it is not a continuation of a judicial action on a claim

“against the debtor.” Id.

                “A bill of review is an independent action to set aside a judgment that is no longer

appealable or subject to challenge by a motion for new trial.” Wembley Inv. Co. v. Herrera,

11 S.W.3d 924, 927 (Tex. 1999). The Fourteenth Court has addressed the question of whether the

automatic stay in bankruptcy applies to an action for a bill of review:


        The automatic stay of the bankruptcy code applies only to actions “against the
        debtor.” It does not apply to a debtor’s offensive claims. Appellant [debtor] brought
        the bill of review and was the party seeking relief. Therefore, the Bill of Review was
        not an action against him, and the automatic stay did not apply.


Clarke v. Hunters Glen Cmty. Ass’n, No. 14-03-00971-CV, 2004 Tex. App. LEXIS 5218, at *6

(Tex. App.—Houston [14th Dist.] June 15, 2004, no pet.)(mem. op.) (citations omitted). Citing this

authority, the Comptroller asks this Court to conclude that the automatic stay did not apply to

                                                   2
Bashaw’s bill of review, and to hold that the statute of limitations for filing a bill of review

continued to run throughout the pendency of Bashaw’s bankruptcy proceeding. We need not decide

whether the automatic stay applies to actions for a bill of review because application of the stay does

not affect the result of this case. As explained below, application of the automatic stay does not toll,

suspend, or otherwise extend the filing deadline for a bill of review such that Bashaw’s filing in

this case was timely.

                Bashaw urges this Court to treat his bill of review like an appeal1 of the judgment in

the Comptroller’s suit against him and to conclude that the automatic stay on suits against him tolled

the deadline for filing his bill of review. However, Bashaw’s argument incorrectly assumes that the

application of the automatic stay to appeals somehow tolls or suspends appellate deadlines. Several

Texas courts of appeals have held that the automatic stay provided by section 362 of the United

States Bankruptcy Code does not operate to toll any state appellate deadlines. See Gantt v. Gantt,

208 S.W.3d 27, 31 (Tex. App.—Houston [14th Dist.] 2006, pet. filed); Chunn v. Chunn,

929 S.W.2d 490, 494 (Tex. App.—Houston [1st Dist.] 1996, no writ); Burrhus v. M & S

Mach. & Supply Co., 897 S.W.2d 871, 873 (Tex. App.—San Antonio 1995, no writ); Raley v. Lile,

861 S.W.2d 102, 105 (Tex. App.—Waco 1993, writ denied). This is true even though a debtor




        1
          An appeal is a continuation of a judicial action, and it is automatically stayed if it is taken
by either party from an action “against the debtor.” Greenberg v. Fincher & Son Real Estate, Inc.,
753 S.W.2d 506 (Tex. App.—Houston [1st Dist.] 1988, order) appeal dismissed by agreement,
No. 01-88-00143-CV, 1989 Tex. App. LEXIS 1657 (Tex. App.—Houston [1st Dist.] June 22, 1989).


                                                   3
cannot perfect an appeal of a judgment entered against him during the pendency of the automatic

stay.2 See Burrhus, 897 S.W.2d at 873.

               In this case, Bashaw had until September 21, 2004, to file a bill of review attacking

the default judgment entered against him on September 21, 2000. See Tex. Civ. Prac. & Rem.

Code Ann. § 16.051 (West 1997); Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998) (applying

residual four-year statute of limitations to bills of review). He filed for Chapter 7 bankruptcy

protection on February 1, 2002, and received a discharge on October 8, 2003. During this time,

continuation of litigation against Bashaw was stayed. See 11 U.S.C.A. § 362(c). However, even if

the automatic stay prevented Bashaw from filing a bill of review during the pendency of the stay, the

deadline for filing a bill of review was in no way tolled or extended beyond September 21, 2004.

Therefore, even under Bashaw’s theory of the case, his petition for bill of review, which was filed

on March 30, 2005, was time barred.

               In Peterson v. Texas Commerce Bank-Austin, National Ass’n, 844 S.W.2d 291,

292 (Tex. App.—Austin 1992, no pet.), this Court addressed whether the statute of limitations for

filing suit against a debtor in bankruptcy was tolled by the state common law during the pendency

of the automatic stay. In that case, Hartwin Peterson executed a promissory note with the Bank,

defaulted on the note, and then filed for bankruptcy three months later. See id. The Bank was




       2
           If the deadline for filing an appeal of a judgment on a claim against the debtor expires
during the pendency of the automatic stay, section 108(c) of the United States Bankruptcy Code
provides for an extension of the deadline for “30 days after notice of the termination or expiration
of the stay under section 362, . . . with respect to such claim.” 11 U.S.C.A. § 108(c)(2);
Chunn v. Chunn, 929 S.W.2d 490, 494 (Tex. App.—Houston [1st Dist.] 1996, no writ). Section
108(c), like section 362, does not operate to toll any appellate deadlines. Chunn, 929 S.W.2d at 494.

                                                 4
prevented from suing on the debt by the automatic stay, which was in place for more than four years.

Id. Almost one year after the stay was lifted, the Bank sued on the note and was granted summary

judgment. Id. On appeal, Peterson contended that the four-year statute of limitations had run on the

debt and that the Bank missed the 30-day grace period to file suit under section 108(c). Id. at 295.

The Bank responded that the statute of limitations had been tolled during the automatic stay under

the common law rule that “where a person is prevented from exercising his legal remedy by the

pendency of legal proceedings, the time during which he is thus prevented should not be counted

against him in determining whether limitations have barred his right.”                     Id. at 294

(citing Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991)). Reasoning that the Bank

could not have brought a cause of action on the debt if the bankruptcy court had found the note

subject to discharge, this Court held that “when a claimant is prohibited from bringing suit by the

Bankruptcy Code’s automatic-stay provision, the statute of limitations is tolled until the stay is

lifted.” Id. In affirming the summary judgment, this Court explained that “our state’s common law,

and not the federal bankruptcy law, tolls the statute of limitations.” Id. at 295.

                The holding in Peterson is consistent with our holding in this case. Although Texas

common law tolls the statute of limitations on a claim against the debtor during a bankruptcy stay,

“[t]here is no statute, procedural rule or common law principle that suspends the appellate timetable

during an automatic bankruptcy stay.” Raley, 861 S.W.2d at 105 (emphasis added). Therefore, if

we adopt Bashaw’s position and treat his bill of review like an appeal of a judgment against him, the

post-judgment time period for filing a bill of review, like other appellate deadlines, would not be

tolled for the length of the automatic stay. If, on the other hand, we treat Bashaw’s bill of review like



                                                   5
the commencement of a new action against the Comptroller, the automatic stay does not apply and

the action is merely governed by a four-year statute of limitations. Bashaw’s petition for bill of

review is untimely under either theory.

               Because we conclude that Bashaw’s petition for bill of review is untimely regardless

of whether the automatic stay provision of the bankruptcy code applies, we do not address whether

the automatic stay applies to bills of review. See Tex. R. App. P. 47.1 (opinion must address issues

“necessary to final disposition of appeal”) Accordingly, we affirm the judgment of the trial court.



                                              __________________________________________

                                              G. Alan Waldrop, Justice



Before Justices B. A. Smith, Pemberton and Waldrop;
  Justice B. A. Smith Not Participating

Affirmed

Filed: May 25, 2007




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