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

 

 

 

In The

 

Fourteenth Court of Appeals

____________

 

NO. 14-04-00658-CV

____________

 

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

 

V.

 

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

Sec. 29.  To guard against transgressions of the high powers herein delegated, we declare that everything in this ABill of Rights@ is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

Tex. Const. Preamble, art. I, '' 16, 29 (emphasis added).

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.  

As to the legal standard used in Wright, the Texas Supreme Court cited various cases regarding the vested-rights analysis; it did not discuss the police-power legal standard or any other possible alternatives to the vested-rights legal standard.  See id. at 649B50.   The Wright court did not indicate that the vested-rights analysis should be discarded; rather, it used the vested-rights analysis to uphold the challenged statute, citing the DeCordova case in determining that nine and a half years was a reasonable period for the owners to have a chance to use their permits to avoid a finding of willful abandonment.  See id. at 649 (citing DeCordova, 4 Tex. at 480).  There is one paragraph in the Wright opinion in which the court cites four law review articles and notes that some legal scholars have tried to discover the underlying rationale for what makes a statute unconstitutionally retroactive.  See id. at 649.  Though the Texas Supreme Court recognized that efforts to catalogue cases have provided some assistance and also shown some confusion in the decisions, our high court did not suggest abandonment of the vested-rights analysis nor did it propose any other legal standard as a substitute.  See id. at 648B50.  The Wright case does not support a change from the well-established vested-rights analysis to a new police-power analysis. 

The majority also relies on the Texas Supreme Court=s opinion in Barshop.  See ante at p. 11.  In Barshop, our high court rejected various constitutional claims that the Edwards Aquifer Act was unconstitutional on its face, holding that the plaintiffs failed to establish that this statute, by its terms, always operates to unconstitutionally deprive them of their property rights in underground water.  See Barshop, 925 S.W.2d at 627, 638.  The Barshop plaintiffs asserted, among other things, that the challenged statute was an unconstitutional retroactive law under the Texas Constitution.  See id. at 633B34.  The Barshop court began by recognizing that retroactive laws that impair vested rights violate the Texas Constitution.  See id. at 633.  Although the State asserted that the plaintiffs did not have vested rights in the water in question, the Barshop court did not address this argument.  See id. at 625,  633B34.  Instead, the court applied a police-power analysis, stating that A[a] valid exercise of the police power by the Legislature to safeguard the public safety and welfare can prevail over a finding that a law is unconstitutionally retroactive.@  See id. at 633B34.  The only authorities cited by the Barshop court for this proposition are five court of appeals opinions and one Texas Supreme Court opinion.  See id.  Except for the Texas State Teachers Ass=n case, the parts of these opinions cited by Barshop are obiter dicta.  See Texas State Bd. of Barber Exam=rs v. Beaumont Barber Coll., Inc., 454 S.W.2d 729, 732 (Tex. 1970) (stating, after concluding that barber college had no vested right to operate with less floorspace and equipment than required by new statute, that barber college=s right was to be protected from legislation that constitutes an unreasonable exercise of the police power); 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 expressed doubts, that teachers= certificates in question were vested rights and holding that constitutional prohibition against retroactive laws must yield to the state=s right to safeguard the public welfare through valid exercise of its police power, citing Kilpatrick and Wichita Engineering); Ismail v. Ismail, 702 S.W.2d 216, 222 (Tex. App.CHouston [1st Dist.] 1985, writ ref=d n.r.e.) (stating that an overriding public interest justifies application of statute to property acquired before the enactment, but concluding that court was bound by prior Texas Supreme Court case, which held that legal principle contained in statute was the law in Texas even before the statute took effect); Kilpatrick v. State Bd. of Registration for Prof=l Eng=rs, 610 S.W.2d 867, 870B71  (Tex. Civ. App.CFort Worth 1980, writ ref=d n.r.e.) (holding appellants had no vested rights that would be protected from retroactive laws but also citing Wichita Engineering for the statement that the constitutional protections against retroactive laws are not absolute and must yield to the state=s right to safeguard public welfare); State Bd. of Registration for Prof=l Eng=rs v. Wichita Eng=g Co., 504 S.W.2d 606, 608B09  (Tex. Civ. App.CFort Worth 1973, writ ref=d n.r.e.) (stating that corporation had no vested right in using Aengineering@ in its name based on statute that was in effect when it was incorporated but stating that the constitutional protections against retroactive laws are not absolute and must yield to the state=s right to safeguard public welfare); Caruthers v. Bd. of Adjustment of City of Bunker Hill Village, 290 S.W.2d 340, 345B50 (Tex. Civ. App.CGalveston 1956, no writ) (concluding property owners had no vested right to compel recognition of their planned subdivision in case in which parties did not assert an article I, section 16 violation, but stating that all property rights are subordinate to the valid and reasonable use of the police power).  Nonetheless, the Barshop court stated that it agreed with the reasoning of these cases. The Barshop court did not reach the issue of whether the plaintiffs had vested rights, and it rejected the retroactivity challenge because it concluded that the Edwards Aquifer Act was Anecessary to safeguard the public welfare of the citizens of this state.@  Barshop, 925 S.W.2d at 634. 

The Barshop opinion supports the majority=s application of a police-power analysis rather than the vested-rights analysis.  But neither Barshop nor the cases cited therein mention or discuss section 29 of the Texas Bill of Rights.  See  Tex. Const. art. I, ' 29.  Under the plain meaning of this constitutional provision, the people of Texas have not given the Texas government the police power to enact any Aretroactive law.@ See Tex. Const. Preamble, art. I, '' 16, 29; Dietz, 940 S.W.2d at 89B90; Bouillion, 896 S.W.2d at 148B49; Marshall, 76 S.W.2d at 1010B11; Fazekas, 565 S.W.2d at 305.  Although Barshop supports a police-power analysis, it does not mention or overrule prior Texas Supreme Court authority that uses the vested-rights analysis.  See, e.g., Wright, 464 S.W.2d 6 at 648B50;  Middleton, 185 S.W. at 559B61; Mellinger, 3 S.W. at 251B54.  Since Barshop was decided nearly a decade ago, the Texas Supreme Court and this court have used the vested-rights analysis without mentioning or discussing Barshop.  See, e.g., Subaru of America, Inc., 84 S.W.3d at 219B23; In re A.D., 73 S.W.3d at 247B49; Baker Hughes, Inc., 12 S.W.3d at 4B5; Likes, 962 S.W.2d at 502B03; In re S.C.S., 48 S.W.3d at 835; Price Pfister, Inc., 48 S.W.3d at 353B55; Reames, 928 S.W.2d at 631.  Research indicates that Barshop is the only Texas Supreme Court case holding that a police-power type of analysis is appropriate for evaluating a claim that a statute violates the Texas Constitution=s prohibition against retroactive laws. As an intermediate court of appeals, this court is bound by Texas Supreme Court precedent; however, Barshop is contradicted by several other Texas Supreme Court precedents existing when Barshop was decided and by several such precedents decided after Barshop.^[2]  In this difficult position in which this court cannot possibly follow both Barshop and the other Texas Supreme Court precedents, the better course would be to follow the other precedents.  Not only does the weight of authority rest in these cases, but these opinions discuss the issue in light of section 29 of the Texas Bill of Rights.  Therefore, this court should apply the vested-rights analysis rather than a police-power analysis.

                                      The Vested-Rights Analysis

Both the Texas Supreme Court and this court have concluded that an accrued cause of action is a vested right.  See Likes, 962 S.W.2d at 502; Mellinger, 3 S.W. at 253 (AWhen . . . a state of facts exists as the law declares shall entitle a plaintiff relief in a court of justice on a claim which he makes against another . . . , then it must be said that a right exists [and] has become fixed or vested . . . .@); Price Pfister, Inc., 48 S.W.3d at 354 (determining that, for purposes of retroactivity analysis under Texas Constitution, company had a vested right when its contract claim accrued); but see Walls v. First State Bank of Miami, 900 S.W.2d 117, 122 (Tex. App.CAmarillo 1995, writ denied) (stating that right does not become vested until claim is reduced to a final, nonreviewable judgment); Houston Indep. Sch. Dist. v. Houston Chronicle Pub. Co., 798 S.W.2d 580, 589 (Tex. App.CHouston [1st Dist.] 1990, writ denied) (indicating that right is not vested until lawsuit is filed and finally determined).  This logic is also supported by the various cases holding that a right to a limitations defense becomes vested when the claim becomes barred by limitations, rather than when the party obtains a judgment to this effect that is final by appeal.  See, e.g., Baker Hughes, Inc., 12 S.W.3d at 4 (stating that it is well settled that a statute may not retroactively destroy a party=s right to a limitations defense, which becomes vested after the claim is barred by limitations).  Though some courts of appeals have stated that an accrued claim is not vested until it is reduced to a judgment final by appeal, these holdings are contrary to precedents binding on this court.  See Likes, 962 S.W.2d at 502; Mellinger, 3 S.W. at 253; Price Pfister, Inc., 48 S.W.3d at 354. Moreover, these holdings are not logically sound.  If a judgment final by appeal is necessary, then parties whose claims accrued on the same day would have their entitlement to constitutional protection from retroactive statutes determined based in part on how expeditious the trial and appellate process happened to be in their particular lawsuits.  That would not be reasonable.

Because Mrs. Robinson=s claims accrued and were pending in the trial court when the Statute took effect, Mrs. Robinson held vested rights in these claims that could not be destroyed.^[3]  See Likes, 962 S.W.2d at 502; Mellinger, 3 S.W. at 253; Price Pfister, Inc., 48 S.W.3d at 354.  Crown Cork & Seal asserts that the Statute does not bar all of Mrs. Robinson=s remedy for the claimed injuries because she can sue other companies not protected by the Statute. This argument lacks merit because Mrs. Robinson claims that the Statute retroactively destroyed her vested rights in her claims against Crown Cork & Seal, rather than any vested rights she might have to sue other entities.  Crown Cork & Seal has cited no cases supporting the notion that the Texas Constitution permits a statute to retroactively destroy a vested right in an accrued claim if other parties may be liable on other claims seeking damages for the same injury.  This argument lacks merit.^[4]

          In Ieropoli v. AC&S Corp., the Pennsylvania Supreme Court addressed the constitutionality of  a Pennsylvania statute limiting the successor asbestos-related liabilities of certain companies that, as applied, would have retroactively destroyed accrued tort claims against Crown Cork & Seal.  See 842 A.2d 919, 932 (Penn. 2004).  Although Ieropoli involved the open courts provision of the Pennsylvania Constitution and a somewhat different Pennsylvania statute, the case has some persuasive value in evaluating the constitutional issue in the instant case.  See 842 A.2d 919, 932 (Penn. 2004).  In Ieropoli, Pennsylvania=s high court held that the Pennsylvania statute, as applied, offended the Pennsylvania Constitution.  See id. at 929B32.  Reversing and remanding the lower court, the Pennsylvania Supreme Court found that the Pennsylvania statute violated the open courts provision of the Pennsylvania Constitution by  destroying all remedy for an accrued cause of action.  See id. at 932.  The Ieropoli court held that an accrued claim is a vested right that cannot be eliminated by subsequent legislation. See id. at 927, p32.  In explaining why the statute violated the remedies clause of the Pennsylvania Constitution, the Ieropoli court stated:

Before the Statute=s enactment, each cause of action that [plaintiffs] brought against Crown Cork was a remedyCit was the vehicle by which [plaintiffs] lawfully pursued redress, in the form of damages, from Crown Cork for an alleged legal injury.  But under the Statute, [plaintiffs] cannot obligate Crown Cork to pay them damages on those causes of action.  In this way, each cause of action has been stripped of its remedial significance, as it can no longer function as the means by which [plaintiffs] may secure redress from Crown Cork.  As a remedy, each cause of action has been in essence, extinguished.  Under [the open courts provision of the Pennsylvania Constitution], however, a statute may not extinguish a cause of action that has accrued.  Therefore, as [plaintiffs=] causes of action accrued before the Statute was enacted, we hold that the Statute=s application to [plaintiffs=] causes of action is unconstitutional

Id. at 930.  The Pennsylvania Supreme Court rejected the argument  that because the plaintiffs could recover from other potential defendants, no cause of action had been extinguished.  The court=s logic in rejecting this point is persuasive:

What this reasoning overlooks is the individual nature of a cause of action.  A plaintiff does not assert one cause of action against multiple defendants.  Rather, a plaintiff asserts one cause of action (or two or several causes of action) against a single defendant . . .  Thus, the fact that the causes of action [plaintiffs] brought against Crown Cork=s co-defendants are proceeding has no bearing on the Statute=s unconstitutional effect on the accrued casues of action that [plaintiffs] brought against it.

Id.  Although the Pennsylvania Constitution is different from the Texas Constitution, both states use the vested-rights analysis and both constitutions prohibit statutes that retroactively eliminate accrued claims; therefore, the majority=s distinctions between the Ieropoli decision and this case are not convincing.  The majority states that Athe most important differences appear in the statutes themselves,@ noting that the Pennsylvania statute was not as narrowly drawn as the Texas statute, was not crafted to encompass Aonly the most innocent successor corporations,@ and did not impose the requirement that a corporation must have purchased the asbestos division before May 13, 1968, and must not have manufactured asbestos itself.  Ante at p. 19.  But, if the enactment of the Statute violates a constitutional prohibition on retroactive laws, these points are not relevant to the analysis.

In sum, by enacting this expressly retroactive statute, our Legislature created a new substantive defense to successor liability and made it immediately effective in all pending cases, destroying Mrs. Robinson=s vested rights in her accrued tort claims against Crown Cork & Seal.  The Statute, as applied to Mrs. Robinson, is unconstitutional because it violates the Texas Bill of Rights=s prohibition against retroactive laws. 

                                                     Conclusion

Based on the structure and plain language of the Texas Constitution as well as the weight of binding precedent, this court should utilize the vested-rights analysis to determine whether the Statute is an unconstitutional retroactive law as applied to Mrs. Robinson=s claims against Crown Cork & Seal.  This analysis compels the conclusion that, as applied to her, the Statute retroactively destroys Mrs. Robinson=s vested rights in accrued tort claims against Crown Cork & Seal.  Therefore, to this extent, the Statute violates article I, section 16 of the Texas Constitution.

 

 

 

 

/s/        Kem Thompson Frost

Justice

 

 

 

Judgment rendered and Majority and Dissenting Opinions filed May 4, 2006.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.  (Fowler, J., majority)