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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 reasonabl | |