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Affirmed and Majority and Dissenting Opinions filed May 4, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00658-CV

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BARBARA ROBINSON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JOHN ROBINSON, DECEASED, Appellant

CROWN CORK & SEAL COMPANY, INC., Appellee

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 02-50324A

D I S S E N T I N G O P I N I O N

In deciding whether the legislation at issue violates the prohibition against retroactive laws in the Texas Bill of Rights, the court concludes that if the Texas Legislature reasonably exercises its police power to enact a statute, then that statute does not violate the Texas Constitution, even though the statute is retroactive and destroys the vested rights of some individuals. The people of the State of Texas, in emphatic and compelling language set forth in section 29 of the Texas Bill of Rights, have expressly withheld from the Legislature the authority to enact retroactive laws in violation of section 16 of the Texas Bill of Rights. Because the Legislature has no police power to enact retroactive laws in violation of section 16, this court should not use a police-power analysis to determine whether the statute is unconstitutionally retroactive. Furthermore, the weight of precedent from the Texas Supreme Court and this court requires the use of the vested-rights analysis. Under this analysis, the statute in question destroys the vested rights of the appellant in this case and therefore violates section 16 of the Texas Bill of Rights, as applied. Because the court, using a police-power analysis, reaches the opposite conclusion, I respectfully dissent.

The Applicable Text of the Texas Constitution

In her first issue, Mrs. Robinson asserts that Chapter 149 of the Texas Civil Practice and Remedies Code (hereinafter Athe Statute@) violates section 16 of the Texas Bill of Rights as applied to her claims against appellee Crown Cork & Seal Company, Inc. In interpreting the Texas Constitution, Texas courts rely heavily on the literal text and must give effect to its plain language. Republican Party of Texas v. Dietz, 940 S.W.2d 86, 89 (Tex. 1997). The Texas Constitution states in pertinent part:

PREAMBLE

Humbly invoking the blessings of Almighty God, the people of the State of Texas, do ordain and establish this Constitution.

ARTICLE I

BILL OF RIGHTS

That the general, great and essential principles of liberty and free government may be recognized and established, we declare:

. . .

' 16. Bills of attainder; ex post facto or retroactive laws; impairing obligation of contracts

Sec. 16. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.

. . .

' 29. Provisions of Bill of Rights excepted from powers of government; to forever remain inviolate

Every constitution of the State of Texas has contained the language currently found in sections 16 and 29 of the Texas Bill of Rights. See Tex. Const. of 1869, art. I, '' 14, 23; Tex. Const. of 1866, art. I, '' 14, 21; Tex. Const. of 1861, art. I, '' 14, 21; Tex. Const. of 1845, art. I, '' 14, 21. The Constitution of the Republic of Texas contained substantially similar language. See Repub. Tex. Const. of 1836, Declaration of Rights, Preamble & Sixteenth, reprinted in Tex. Const. app. 482, 493B94 (Vernon 1993). Under the plain meaning of this text, Aretroactive laws@ shall not be made, and the people of Texas have not given the Texas Legislature any police power to enact Aretroactive laws.@ See Tex. Const. Preamble, art. I, '' 16, 29; Dietz, 940 S.W.2d at 89B90 (stating that article I, section 29 of the Texas Constitution expressly limits the power of Texas government by excepting everything in the Bill of Rights out of the general powers of government and citing with approval Travelers= Ins. Co. v. Marshall, 76 S.W.2d 1007 (Tex. 1934)); City of Beaumont v. Bouillion, 896 S.W.2d 143, 148B49 (Tex. 1995) (stating that the guarantees found in the Bill of Rights are excepted from the general powers of government and that the state has no power to act in a manner contrary to the Bill of Rights); Travelers= Ins. Co. v. Marshall, 76 S.W.2d 1007, 1010B11 (Tex. 1934) (holding that Texas Legislature has no police power to violate article I, section 16 of the Texas Constitution because section 29 emphatically and unambiguously excepts this power from the powers of the government of the State of Texas); Fazekas v. Univ. of Houston, 565 S.W.2d 299, 305 (Tex. Civ. App.CHouston [1st Dist.] 1978, writ ref=d n.r.e.) (stating that, although State of Texas has a broad police power, the Texas Constitution excepts from this power the authority to enact laws contrary to article I, section 16 of the Texas Constitution); but see Barshop v. Medina Cty. Underground Water Conserv. Dist., 925 S.W.2d 618, 633B34 (Tex. 1996) (stating that a valid exercise of the Legislature=s police power can prevail over a finding that a law is unconstitutionally retroactive); Texas State Teachers Ass=n v. State, 711 S.W.2d 421, 424B25 (Tex. App.CAustin 1986, writ ref=d n.r.e.) (presuming, despite stated doubts, that teachers= certificates were vested rights for purpose of retroactivity challenge under article I, section 16 of the Texas Constitution, but stating that such rights are still subject to the Legislature=s police power, without discussing section 29 of the Texas Constitution=s Bill of Rights); Martin v. Wholesome Dairy, Inc., 437 S.W.2d 586, 590B91 (Tex. Civ. App.CAustin 1969, writ ref=d n.r.e.) (indicating that equal rights and due course of law provisions of Texas Bill of Rights are subject to the police power without discussing section 29 or the Marshall case). On many occasions over the past 160 years, the Texas Supreme Court has considered whether a given statute violates this express constitutional prohibition against retroactive laws, yet the issue presented today is not easily answered. The difficulty arises not because the issue itself is complex but because Texas jurisprudence is a bit unclear with respect to the proper analytical framework for evaluating the constitutionality of a statute challenged under section 16 of the Texas Bill of Rights. One case from the Texas Supreme Court raises questions as to the authority of the Legislature to exercise its police power to enact a Aretroactive law.@

In Barshop, the Texas Supreme Court stated that even if a statute violates the prohibition against retroactive laws contained in article I, section 16 of the Texas Constitution, the statute is not void if it was a valid exercise of the Legislature=s police power. See Barshop, 925 S.W.2d at 633B34. Barshop, however, does not contain any reference to section 29 of the Texas Bill of Rights or rest upon any Texas Supreme Court holding to support this proposition. See id. at 633B36. Texas Supreme Court decisions both before and after Barshop state that section 29 expressly limits the power of Texas government by excepting everything in the Bill of Rights out of the general powers of government. See Dietz, 940 S.W.2d at 89B90; Bouillion, 896 S.W.2d at 148B49; Marshall, 76 S.W.2d at 1010B11. In Marshall, the Texas Supreme Court held that the Texas Legislature has no police power to violate article I, section 16 of the Texas Constitution because section 29 unambiguously excepts this power from the powers of the Texas state government. See Marshall, 76 S.W.2d at 1010B11. Although the Barshop court, in conducting its analysis under the Contract Clause of the Texas Constitution, distinguished Marshall, it did not overrule Marshall. See Barshop, 925 S.W.2d at 633B35. Furthermore, since Barshop, the Texas Supreme Court, addressing this issue, has cited Marshall with approval. See Dietz, 940 S.W.2d at 89B90.

In its Contract Clause analysis, the Barshop court also stated that in an 1851 precedent, State v. Delesdenier, the Texas Supreme Court concluded that the Contract Clause may yield to statutes necessary to safeguard the public welfare. See Barshop, 925 S.W.2d at 635 (citing State v. Delesdenier, 7 Tex. 76, 99B100 (1851)). The part of Delesdenier cited by Barshop is dicta because the court held that the statute in question affected the remedy and did not infringe on any vested rights. See Delesdenier, 7 Tex. at 98B101. The dicta in Delesdenier cited by Barshop is a recitation of a federal court=s decision under the Contract Clause of the United States Constitution. See U.S. Const. art. I, ' 10 cl. 1 (stating ANo state shall . . . pass any . . . Law impairing the Obligation of Contracts@); Delesdenier, 7 Tex. at 99. In a similar vein, many of the court of appeals cases cited in Barshop trace their reasoning back to federal Contract Clause cases. See, e.g., Texas State Teachers Ass=n, 711 S.W.2d at 424 (relying on and quoting federal Contract Clause case); see also ante at pp. 11 (quoting federal Contract Clause case). As the Texas Supreme Court pointed out in Marshall, this reasoning is problematic. See Marshall, 76 S.W.2d at 1010B11. Though a court applying the Contract Clause of the United States Constitution may conclude that this clause yields to and accommodates the police power of a state to safeguard the interests of its people, this does not mean that the people of Texas are precluded from withholding certain powers from the Texas government. And that is just what the people of Texas have done in section 29.^{^[1]} See Tex. Const. art. I, ' 29; Marshall, 76 S.W.2d at 1010B11 (holding that federal Contract Clause cases deferring to the police power of the states have no application to the Texas Constitution because section 29 expressly limits the police power of Texas government, whereas the United States Constitution does not expressly limit the police power of the states); see also Andrada v. City of San Antonio, 555 S.W.2d 488, 491 (Tex. Civ. App.CSan Antonio 1977, writ dism=d) (citing in dicta federal Contract Clause cases, one of which states that Athe interdiction of statutes impairing the obligation of contracts does not prevent the state from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public@) (emphasis added, citing Manigault v. Springs, 199 U.S. 473, 480 (1905)). This court is bound by our high court=s precedent; however, Barshop is contradicted by both prior and subsequent Texas Supreme Court precedent. In this unusual situation, it is better to follow the weight of controlling precedent.

Texas courts need a clear legal standard for determining whether a challenged statute constitutes a Aretroactive law@ that is impermissible under the Texas Constitution. The majority holds that a statute is not an unconstitutional retroactive law if the Texas Legislature reasonably exercised its police power in enacting the statute. This legal standard seems problematic given the structure and plain language of the Texas Constitution, which, in clear and forceful terms, expressly and unequivocally withholds from Texas government the power to enact retroactive laws. See Tex. Const. Preamble, art. I, ' 16 (ANo . . . retroactive law. . . shall be made.@), ' 29 (A[E]verything in this >Bill of Rights= is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto . . . shall be void.@). Under well-reasoned constitutional theory, a constitution is a charter of government that derives its whole authority from the governed. Dietz, 940 S.W.2d at 91. A constitution is a compact between the government and the people in which the people delegate powers to the government and in which the powers of the government are prescribed. Id. The Texas Constitution states that the people of Texas have not delegated to their government the power to enact any Aretroactive law.@ Whatever shortcomings the vested-rights analysis may have, it is consistent with the structure and plain language of the Texas Constitution. Under this analysis, the Texas Legislature lacks the power to enact statutes that nullify or destroy vested rights. See, e.g., DeCordova v. City of Galveston, 4 Tex. 470, 473B80 (1849).

A police-power legal standard may be consistent with the structure of some other states= constitutions. But the constitutions of these states have language that is very different from the Texas Constitution. Consequently, cases interpreting these states= constitutions provide little, if any, insight in evaluating the availability and scope of the police power under the Texas Constitution. For example, the majority cites two New Jersey cases in support of its police-power analysis. See ante at p. 9; Nobrega v. Edison Glen Assoc., 772 A.2d 368, 378B82 (N.J. 2001); Phillips v. Curiale, 608 A.2d 895, 900B02 (N.J. 1992). Unlike the Texas Constitution, the New Jersey Constitution contains no explicit prohibition against retroactive civil laws that do not impair contractual obligations or remedies. N.J. Const. art. IV, sec. VII, par. 3 (AThe Legislature shall not pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made.@). The New Jersey Constitution has no provision analogous to article I, section 29 of the Texas Constitution. See N.J. Const. arts. I, IV. Therefore, unlike the Texas Legislature, the New Jersey Legislature has the general power to enact retroactive civil statutes that do not impair contractual obligations or remedies. See Nobrega, 772 A.2d at 378B82; Phillips, 608 A.2d at 900B02; State Dep=t of Envtl. Prot. v. Ventron Corp., 468 A.2d 150, 163 (N.J. 1983). The only general limitation on such statutes imposed by the New Jersey Constitution is supplied by the substantive due process protection that New Jersey courts have held is implied in the New Jersey Constitution. See N.J. Const. art. I, sec. 1; Nobrega, 772 A.2d at 378B82; Phillips, 608 A.2d at 900B02. The two New Jersey cases cited by the majority did not use a police-power analysis to determine what constitutes an impermissible Aretroactive law@ under the New Jersey Constitution; rather, these cases state that a police-power or rational-basis analysis is better than the vested-rights analysis for determining whether a statute is so unreasonable and harsh as to violate the substantive due process protections implied in the New Jersey Constitution. See N.J. Const. art. I, sec. 1; Nobrega, 772 A.2d at 378B82 (stating that, although the vested-rights analysis had been used to determine whether a retroactive statute violates implied substantive due process, the better analysis is the deferential, rational-basis testCwhether the statute is supported by a legitimate legislative purpose furthered by rational means); Phillips, 608 A.2d at 900B02 (stating that, in substantive due process analysis of retroactive statute, New Jersey courts should balance the importance of the public interest as compared with the value of the right affected by the statute to determine if the legislature reasonably exercised its police power or whether it violated substantive due process by enacting particularly harsh and oppressive legislation).

In the case at hand, Mrs. Robinson does not assert a substantive due process violation; rather, she asserts that, as applied to her, the Statute violates the Texas Constitution=s prohibition against enacting any Aretroactive law.@ If the Statute falls within this category, then the Texas Legislature had no police power to enact it. Thus, in this context, it makes no sense to ask whether the Texas Legislature reasonably exercised its police power to enact a Aretroactive law@ because the Texas Legislature has no police power to enact such a law at all.

Precedent Regarding the Vested-Rights Analysis

Even without considering article I, section 29, the weight of Texas precedent requires this court to apply the vested-rights analysis. In its 1843 term, the Supreme Court of the Republic of Texas used the vested-rights analysis in applying the protection against retroactive laws contained in the Constitution of the Republic of Texas. See Taylor v. Duncan, Dallam 514, 517 (Tex. 1843). In 1849, in DeCordova, the Texas Supreme Court also used the vested-rights analysis in applying this provision of the Republic of Texas Constitution. See DeCordova v. City of Galveston, 4 Tex. 470, 473B80 (1849). At that time, our high court indicated that a Aretrospective law@ under the Republic of Texas Constitution had the same meaning as a Aretroactive law@ under the State of Texas Constitution. See id. at 475; see also Tex. Const. of 1845, art. I, '' 14; Repub. Tex. Const. of 1836, Declaration of Rights, Sixteenth, reprinted in Tex. Const. app. 482, 493B94. The DeCordova court stated that a Aretroactive law@ literally means a law that acts on things that are past. See DeCordova, 4 Tex. at 475. Observing that if this term were given its literal meaning, it would have such a broad reach as to be incapable of practical application, the DeCordova court held that it is unconstitutional to enact a statute that retroactively destroys or impairs vested rights, such as an accrued claim or a right to assert that a claim is barred by the statute of limitations. See id. at 473B80. The DeCordova court also stated that statutes modifying the remedy for a claim do not violate the constitution; however, statutes that take away all remedies for an accrued claim are unconstitutional. See id. at 479B80.

In applying the Texas Constitution=s prohibition against retroactive laws, the Texas Supreme Court and this court have used the vested-rights analysis on numerous occasions to determine if a given statute constitutes a Aretroactive law@ that should be declared void. See Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219B23 (Tex. 2002) (holding that statute changing tribunal for resolving issues under the Texas Motor Vehicle Commission Code did not affect any vested rights and was not an unconstitutional retroactive law); In re A.D., 73 S.W.3d 244, 247B49 (Tex. 2002) (holding that statute would be an unconstitutional, retroactive law if it destroyed a vested right by eliminating a matured statute-of-limitations defense but concluding that statute in question did not do so); Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4B5 (Tex. 1999) (holding that statute of limitations was unconstitutional retroactive statute as applied because it destroyed a vested right to assert a matured statute-of-limitations defense); City of Tyler v. Likes, 962 S.W.2d 489, 502B03 (Tex. 1997) (citing DeCordova and holding that statute was not an unconstitutional retroactive law under vested-rights analysis); Middleton v. Texas Power & Light Co., 185 S.W. 556, 559B61 (Tex. 1916) (holding that statute was not unconstitutional retroactive law using vested-rights analysis); Mellinger v. City of Houston, 3 S.W. 249, 251B54 (Tex. 1887) (holding that, as applied, statute was unconstitutional retroactive law based on the vested-rights analysis); In re S.C.S., 48 S.W.3d 831, 835 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (holding that amendment to statute was not an unconstitutional, retroactive law because the statute does not confer any vested right); Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 353B55 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (stating that, to establish that a statute is an unconstitutional, retroactive law a party must show that the statute=s application would take away or impair vested rights under existing law and holding that statute did not affect any vested rights of appellant); Zeolla v. Zeolla, 15 S.W.3d 239, 242B43 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (stating that although Family Code does not define statutory term Aretroactive effect,@ this term is commonly used to describe a law that takes away or impairs vested rights under existing law); Reames v. Police Officers= Pension Bd., 928 S.W.2d 628, 631 (Tex. App.CHouston [14th Dist.] 1996, no writ) (stating that an unconstitutional retroactive law is Aone which takes away or impairs vested rights acquired under existing laws@ and holding that statute in question did not impair party=s vested rights) (quotations omitted). The majority states that, in the Wright case, the Texas Supreme Court acknowledged problems with the vested-rights analysis, outlined alternatives to this analysis, and indicated that the vested-rights analysis should no longer be used. See ante at p. 9-10 (citing Texas Water Rights Comm=n v. Wright, 464 S.W.2d 642, 648B49 (Tex. 1971)).

In Wright, L. A. Wright, Myrlee McNary, and George McNary challenged the cancellation of their water permits. See Wright, 464 S.W.2d at 644. The Texas Water Rights Commission had canceled the permits under a 1957 statute because the permit owners had not used the permits for ten years. See id. The permit owners asserted that the statute was unconstitutionally retroactive as applied to them. See id. at 644B48. Before the 1957 statute took effect, a water permit could be canceled if it had been willfully abandoned for three consecutive years; however, the law required proof of a subjective intent to abandon the permit as well as three consecutive years of non-use. See id. at 644. The challenged 1957 statute allowed cancellation of water permits without any proof of subjective intent to abandon if the owner failed to use the water permit for ten consecutive years. See id. at 645. The Texas Supreme Court determined that the owners had vested rights to the beneficial, non-wasteful use of water but that they did not have a right to the non-use of water. See id. at 647B48. The challenged statute took effect six months into the ten-year period used to determine that the owners had willfully abandoned their water rights under the permits. See id. at 649. The Wright court determined that the owners had no right to an unlimited period of non-use of water and that the owners had nine and a half years after the effective date of the statute to use some water under the permits to avoid a finding of willful abandonment. See id. at 649B50. Rejecting the owners= constitutional challenges, the Wright court held that the 1957 statute=s alteration of the standard for determining willful abandonment did not constitute an unconstitutional retroactive law. See id.