Exceptions to the Texas Statute of Limitations: Tolling and Repose

Texas statute of limitations tolling exceptions are the narrow situations in which the filing clock on a lawsuit is paused, delayed from starting, or extended past its normal expiration. Texas recognizes seven main routes: legal disability, the discovery rule, fraudulent concealment, a defendant’s absence from the state, a party’s death, active military service under federal law, and voluntary tolling agreements between the parties. Each has strict conditions, and for many claims a statute of repose sits behind them as a hard outer deadline that most tolling doctrines cannot cross.

Legal Disability: Minors and People of Unsound Mind

Texas Civil Practice and Remedies Code Section 16.001 pauses the limitations period for anyone under a “legal disability” when their claim first arises. Two groups qualify: people younger than 18 and people of unsound mind. Time spent under the disability does not count toward the filing deadline.¹

For a child injured at age 10, the clock does not start until the 18th birthday. Because personal injury claims carry a two-year deadline under Section 16.003, that child has until age 20 to file.² Marriage does not change this. A minor who marries at 16 still gets the benefit of tolling until 18.¹

For someone of unsound mind, tolling lasts until they regain capacity. Proving that status usually requires medical evidence that the person could not manage their own affairs at the time the injury occurred. Two limits catch people off guard. The disability must exist when the cause of action first arises; incapacity that develops later does not pause a clock that already started. And you cannot stack disabilities. A minor who turns 18 and then becomes mentally incapacitated cannot combine the two to keep extending the deadline.¹

The Discovery Rule for Hidden Injuries

Some injuries do not announce themselves. A surgeon leaves a sponge inside a patient. A contractor pours a defective foundation that will not crack for years. The Texas discovery rule delays the start of the limitations period until the injured person knows, or should have known with reasonable diligence, that a wrongful act caused them harm.

Texas courts apply a strict two-part test. The injury must be inherently undiscoverable, meaning the kind of harm a diligent person would not likely notice within the normal filing window. And it must be objectively verifiable through physical signs, documents, or test results confirming the harm actually occurred.³

Texas courts treat this as a narrow exception. It has been applied to latent construction defects and to medical malpractice where symptoms take time to surface, but it will not help if your injury is the kind people normally notice right away. And not knowing the full dollar amount of your damages does not delay accrual. The focus is on awareness of the wrongful act, not the final tally of medical bills or repair estimates.

Fraudulent Concealment by the Defendant

When a defendant actively hides wrongdoing to prevent a lawsuit, the limitations clock is paused for as long as the cover-up succeeds. This doctrine focuses on the defendant’s behavior rather than the nature of the injury. A wrongdoer should not benefit from their own deception.

To invoke fraudulent concealment, a plaintiff must show three things: the defendant actually knew a wrong occurred, the defendant had a duty to disclose it, and the defendant took deliberate steps to conceal the facts the plaintiff needed to recognize a claim. Passive silence is generally not enough. The exception is a fiduciary relationship, such as attorney-client or trustee-beneficiary, where staying silent about a known wrong can itself count as concealment.

Tolling ends the moment the plaintiff discovers the deception or could have discovered it with reasonable investigation. From that point, the standard limitations period resumes.

Absence from the State

Section 16.063 of the Texas Civil Practice and Remedies Code suspends the limitations period while a defendant is physically outside Texas.⁴ The original idea was that if the person you need to sue has left Texas and cannot be served, the clock should stop until they return.

In practice, the exception has shrunk. Texas’s long-arm statute lets courts reach nonresident defendants who do business in Texas or commit a wrongful act here.⁵ The Texas Supreme Court has held that a defendant who is subject to personal jurisdiction and can be served through the long-arm statute is not “absent” under Section 16.063, even if physically out of state.⁶ Counting on a defendant’s physical absence to buy more time is risky when modern service rules reach them anyway.

Death of a Party

When either the claimant or the person to be sued dies, the limitations clock pauses for up to 12 months.⁷ The window is intended to give families and estate representatives time to organize legal affairs.

That 12-month window can close much earlier. Once an executor or administrator officially qualifies to manage the estate, the limitations period resumes immediately, even if only a few weeks have passed since the death.⁷ If the representative qualifies 30 days after the death, tolling ends at day 30. Anyone with a pending or expected claim needs to watch the probate docket so the resumed deadline does not slip past.

Active Military Service

The federal Servicemembers Civil Relief Act pauses statutes of limitations for anyone on active military duty. Under 50 U.S.C. § 3936, the entire period of military service is excluded from any state or federal filing deadline.⁸ The protection applies whether the servicemember is plaintiff or defendant, and it extends to heirs and estate representatives.

It is broader than many people expect. A servicemember does not need to be deployed overseas or show that duty interfered with their ability to litigate. The U.S. Supreme Court has called the tolling command “unambiguous, unequivocal, and unlimited.” “Military service” covers active duty from entry until release, including leave, sickness, and training. One notable carve-out: SCRA tolling does not apply to federal tax deadlines under the Internal Revenue Code.⁸

Contractual Tolling Agreements

Parties can voluntarily agree to pause the statute of limitations while they negotiate or investigate. Tolling agreements are contracts, not court orders. Both sides must consent, and neither can impose one unilaterally. They are common in complex commercial disputes where both parties prefer negotiation to a race for the courthouse.

A workable tolling agreement should address:

Scope: which specific claims are covered and which parties are bound.
Duration: how long the pause lasts and how extensions work.
Termination: how either party ends the agreement, typically with a specified notice period such as 30 days.
No admission of liability: an express statement that signing does not concede fault.

Ambiguity about which claims are tolled or when the pause ends can produce the exact deadline fight the agreement was meant to avoid.

The Statute of Repose Ceiling

Every tolling exception above has a silent adversary. While a statute of limitations starts when an injury happens or is discovered, a statute of repose starts from a fixed event, such as when construction is completed, regardless of whether anyone has been hurt yet. Once the repose period expires, the claim is dead even if no injury has surfaced, and most tolling doctrines cannot save it.

Texas’s most commonly encountered statute of repose applies to construction defects. Under Section 16.009, claims against a contractor must be filed within 10 years of substantial completion of the improvement. For government entities the window is eight years. For residential construction with a qualifying written warranty, it can drop to six.⁹

This is where the discovery rule runs out of room. A foundation defect discovered 11 years after construction may be inherently undiscoverable, but the 10-year repose window has already closed. Narrow exceptions exist. Claims based on willful misconduct or fraudulent concealment tied to the work can survive past repose, and filing a written damage claim within the 10-year window extends the deadline by two additional years. For the typical homeowner who discovers a latent defect well after repose, the claim is barred no matter how strong the underlying facts.

If you think one of these exceptions applies to your situation, the safest move is to date every relevant event on paper — when the injury occurred, when you learned about it, when a defendant left or returned to Texas, when a death or military discharge took place — and speak with a Texas attorney before assuming the clock is still running.

1
State of Texas. Texas Civil Practice and Remedies Code 16.001 – Effect of Disability
2
State of Texas. Texas Civil Practice and Remedies Code 16.003 – Two-Year Limitations Period
3
Supreme Court of Texas. Discovery Rule – In the Supreme Court of Texas
4
State of Texas. Texas Civil Practice and Remedies Code 16.063 – Temporary Absence from State
5
State of Texas. Texas Civil Practice and Remedies Code 17.042 – Acts Constituting Business in This State
6
Supreme Court of Texas. Supreme Court of Texas Opinion – Ashley v. Hawkins and Kerlin v. Sauceda
7
State of Texas. Texas Civil Practice and Remedies Code 16.062 – Effect of Death
8
Office of the Law Revision Counsel. 50 USC 3936 – Statute of Limitations
9
State of Texas. Texas Civil Practice and Remedies Code 16.009 – Persons Furnishing Construction or Repair of Improvements