126 tex. 335 south western reporter, 3d series · robinson v. crown cork & seal co., inc.tex....

126 Tex. 335 SOUTH WESTERN REPORTER, 3d SERIES

Barbara ROBINSON, Individually andas Representative of the Estate ofJohn Robinson, Deceased, Petitioner,

v.

CROWN CORK & SEAL CO., INC., In-dividually and as Successor to Mundet

Cork Corporation, Respondent.

No. 06–0714.

Supreme Court of Texas.

Argued Feb. 7, 2008.

Decided Oct. 22, 2010.

Rehearing Denied April 29, 2011.

Background: Worker diagnosed withmesothelioma brought action against suc-cessor to manufacturer of asbestos prod-ucts, seeking to recover for damagescaused by exposure to asbestos, based oncommon-law causes of action for negli-gence and strict liability. The 55th DistrictCourt, Harris County, Jeffrey VincentBrown, J., entered summary judgment infavor of defendant pursuant to statuteslimiting liability of successor corporationsfor asbestos-related claims. Worker ap-pealed. The Houston Court of Appeals,14th District, 251 S.W.3d 520, affirmed.Review was granted.

Holdings: The Supreme Court, Hecht, J.,held that:

(1) the nature of the rights claimed andthe statutes’ impact on them constitut-ed a factor weighing in favor of findingthat statutes limiting corporate succes-sor liability for asbestos-related claimsviolated the state constitutional prohi-bition against retroactive laws, as ap-plied, and

(2) the public interest was a factor weigh-ing in favor of finding that the statutesviolated the state constitutional prohi-bition against retroactive laws, as ap-plied.

Reversed and remanded.

Medina, J., filed a concurring opinion.

Willett, J., filed a concurring opinion, inwhich Lehrmann, J., joined.

Wainwright, J., filed a dissenting opinion,in which Johnson, J., joined.

1. Constitutional Law O1096, 2680, 2785

The United States Constitution doesnot expressly prohibit retroactive laws, butthe antiretroactivity principle finds expres-sion in its prohibitions of bills of attainder,ex post facto laws, and state laws impair-ing the obligation of contracts. U.S.C.A.Const. Art. 1, § 9, cl. 3; U.S.C.A. Const.Art. 1, § 10, cl. 1.

2. Constitutional Law O2789The Ex Post Facto Clause flatly pro-

hibits retroactive application of penal legis-lation. U.S.C.A. Const. Art. 1, § 9, cl. 3.

3. Constitutional Law O1096The constitutional prohibitions of bills

of attainder prohibit legislatures from sin-gling out disfavored persons and metingout summary punishment for past conduct.U.S.C.A. Const. Art. 1, § 9, cl. 3; U.S.C.A.Const. Art. 1, § 10, cl. 1.

4. Constitutional Law O1096The Bill of Attainder Clause was in-

tended not as a narrow, technical, andtherefore soon to be outmoded prohibition,but rather as an implementation of theseparation of powers, a general safeguardagainst legislative exercise of the judicialfunction, or more simply, trial by legisla-ture. U.S.C.A. Const. Art. 1, § 9, cl. 3.

5. Constitutional Law O2784, 2790The constitutional prohibition of ex

post facto laws, in the letter, is not to passany law concerning, and after the fact, butthe plain and obvious meaning and inten-tion of the prohibition is that the Legisla-

127Tex.ROBINSON v. CROWN CORK & SEAL CO., INC.Cite as 335 S.W.3d 126 (Tex. 2010)

tures of the several states shall not passlaws, after a fact done by a subject, orcitizen, which shall have relation to suchfact, and shall punish him for having doneit. U.S.C.A. Const. Art. 1, § 10, cl. 1.

6. Statutes O278.3Mere retroactivity is not sufficient to

invalidate a statute, under the state consti-tutional prohibition of retroactive laws;most statutes operate to change existingconditions, and it is not every retroactivelaw that is unconstitutional. Vernon’sAnn.Texas Const. Art. 1, § 16.

7. Limitation of Actions O1Statutes of limitations are procedural.

8. Statutes O278.3A retroactive law is not excepted from

the state constitutional prohibition of ret-roactive laws merely because there was arational basis for its enactment, or evenbecause, on balance, it is likely to do moregood than harm. Vernon’s Ann.TexasConst. Art. 1, § 16.

9. Statutes O278.3The state constitutional prohibition

against retroactive laws does not insulateevery vested right from impairment, nordoes it give way to every reasonable exer-cise of the Legislature’s police power; itprotects settled expectations that rules areto govern the play and not simply thescore, and prevents the abuses of legisla-tive power that arise when individuals orgroups are singled out for special rewardor punishment. Vernon’s Ann.TexasConst. Art. 1, § 16.

10. Statutes O278.3No bright-line test for unconstitution-

al retroactivity of laws is possible, andinstead, in determining whether a statuteviolates the state constitutional prohibitionagainst retroactive laws, courts must con-sider three factors in light of the prohibi-

tion’s dual objectives of protecting settledexpectations and preventing abuses of leg-islative power: (1) the nature and strengthof the public interest served by the statuteas evidenced by the Legislature’s factualfindings; (2) the nature of the prior rightimpaired by the statute; and (3) the extentof the impairment. Vernon’s Ann.TexasConst. Art. 1, § 16.

11. Statutes O278.3, 278.6The perceived public advantage of a

retroactive law is not simply to be bal-anced against its relatively small impact onprivate interests, or the state constitution-al prohibition of retroactive laws would bedeprived of most of its force; there mustbe a compelling public interest to over-come the heavy presumption against retro-active laws. Vernon’s Ann.Texas Const.Art. 1, § 16.

12. Corporations and Business Organi-zations O2641(3)

Statutes O278.33The nature of the rights claimed and

the statutes’ impact on them constituted afactor weighing in favor of finding thatstate statutes limiting the successor corpo-rate liability, under the state’s law or otherstates’ laws, of innocent corporations whichhad not engaged in selling asbestos prod-ucts themselves, for personal injury claimsof asbestos exposure if the corporation be-came a successor prior to May 13, 1968,which apparently was the date by whichthe Legislature thought the dangers ofasbestos should have been commonlyknown, violated the state constitutionalprohibition against retroactive laws, as ap-plied to an action, pending on the statutes’effective date, asserting common-lawcauses of action for negligence and strictliability; statutes significantly impacted asubstantial interest that a worker and hiswife had in well-recognized common-lawcauses of action. Vernon’s Ann.Texas


Const. Art. 1, § 16; V.T.C.A., Civil Practice& Remedies Code § 149.001 et seq.

13. Corporations and Business Organi-zations O2641(3)

Statutes O278.33

The public interest was a factorweighing in favor of finding that statestatutes limiting the successor corporateliability, under the state’s law or otherstates’ laws, of innocent corporations whichhad not engaged in selling asbestos prod-ucts themselves, for personal injury claimsof asbestos exposure if the corporation be-came a successor prior to May 13, 1968,which apparently was the date by whichthe Legislature thought the dangers ofasbestos should have been commonlyknown, violated the state constitutionalprohibition against retroactive laws, as ap-plied to an action, pending on the statutes’effective date, asserting common-lawcauses of action for negligence and strictliability; legislative record was fairly clearthat the statutes were enacted to help onlyone corporate successor to a manufacturerof products containing asbestos, and noone else. Vernon’s Ann.Texas Const. Art.1, § 16; V.T.C.A., Civil Practice & Reme-dies Code § 149.001 et seq.

West Codenotes

Unconstitutional as AppliedV.T.C.A., Civil Practice & Remedies

Code §§ 149.001, 149.002, 149.003, 149.004,149.005, 149.006

Recognized as Unconstitutional15 Pa.C.S.A. § 1929.1

Deborah G. Hankinson, Hankinson Lev-inger LLP, Dallas, TX, Elana S. Einhorn,

The University of Texas School of Law,Jeffery Mundy, Michael C. Singley, Mundy& Singley, LLP, Austin, TX, for BarbaraRobinson.

Deborah G. Hankinson, Hankinson Lev-inger LLP, Dallas, TX, for The Estate ofJohn Robinson, Deceased.

Frank G. Harmon III, Kimberly RoseStuart, Crain, Caton & James, P.C., DavidCrump, University of Houston Law Cen-ter, Houston, TX, Thomas R. Phillips, Bak-er Botts L.L.P., Austin, TX, C.W. ‘‘Rocky’’Rhodes, South Texas College of Law,Houston, TX, Stacy Rogers Sharp, BakerBotts L.L.P., Austin, TX, for Crown Cork& Seal Company, Inc.

Manuel Lopez, Shook, Hardy & BaconL.L.P., Houston, TX, for Amicus CuriaeTexas Civil Justice League.

O. Rey Rodriguez, Fulbright & Jawor-ski, L.L.P., Dallas, TX, for Amicus CuriaeProduct Liability Advisory Council, Inc.

Rafael Edward Cruz, Morgan LewisBocklus LLP, Houston, TX, Bill Davis,Office of the Attorney General of Texas,Office of the Solicitor General, Austin, TX,for Amicus Curiae The State of Texas.

Kevin F. Risley, Thompson, Coe, Cous-ins & Irons, L.L.P., Houston, TX, for Ami-cus Curiae 3M Company.

E. Lee Parsley, E. Lee Parsley, P.C.,Austin, TX, for Amicus Curiae Texans forLawsuit Reform.

Justice HECHT delivered the opinion ofthe Court, in which Chief JusticeJEFFERSON, Justice MEDINA, JusticeGREEN, Justice WILLETT, and JusticeLEHRMANN joined.

The issue we address in this case iswhether a statute that limits certain corpo-rations’ successor liability for personal in-jury claims of asbestos exposure violatesthe prohibition against retroactive laws


contained in article I, section 16 of theTexas Constitution 1 as applied to a pend-ing action. We hold that it does, andtherefore reverse the judgment of thecourt of appeals 2 and remand the case tothe trial court.

I

In 2002, petitioner Barbara Robinson(‘‘Robinson’’) and her husband, John, Tex-as residents, filed suit alleging that John,age 63, had contracted mesothelioma fromworkplace exposure to asbestos products.As often happens, John had used severalsuch products over the course of his life,and the Robinsons sued twenty-one defen-dants, including respondent Crown Cork &Seal Co., alleging that they were all jointlyand severally liable. With respect toCrown, the Robinsons claimed that duringJohn’s service in the United States Navyfrom 1956 to 1976, he worked with asbes-tos insulation manufactured by the MundetCork Corporation, and that when Crownand Mundet merged, Crown succeeded toMundet’s liabilities.

Crown has never itself engaged in themanufacture or sale of asbestos products.3

It manufactures metal bottle-caps, knownin the industry as ‘‘crowns’’, and otherpackaging for consumer goods. Crownand its affiliates have over 20,000 employ-

ees around the world, about 1,000 of whomwork in Texas at facilities in Conroe, Sug-ar Land, and Abilene. In 2009, the parentcompany reported $1.193 billion grossprofit on $7.938 billion net sales.4

In November 1963, Crown’s predeces-sor, a New York corporation with the samename, which was then the nation’s largestmanufacturer of crowns, acquired a major-ity of the stock in Mundet, another NewYork corporation, which besides insulation,also manufactured crowns. Within ninetydays, in February 1964, Mundet sold all itsassets related to its insulation business.Two years later, in February 1966, thecompanies merged. In 1989, Crown’s pre-decessor was reincorporated as Crown, aPennsylvania corporation.

Crown acknowledges that under NewYork and Pennsylvania law, it succeeded toMundet’s liabilities, which, as pertaining toMundet’s asbestos business, have beenhefty. Over the years, Crown has beennamed in thousands of lawsuits claimingdamages from exposure to asbestos manu-factured by Mundet. While Crown ac-quired Mundet for only about $7 million,by May 2003 Crown had paid over $413million in settlements, and Crown’s parentcompany estimated in its 2003 Annual Re-port that payments could reach $239 mil-lion more.5 Mundet’s aggregate insurance

1. TEX. CONST. art. I, § 16 (‘‘No TTT retroactivelaw TTT shall be made.’’).

2. 251 S.W.3d 520 (Tex.App.-Houston [14thDist.] 2006).

3. Robinson argued in the lower courts thatMundet’s asbestos business was still in opera-tion when Crown became Mundet’s majorityshareholder, and that Crown should be heldto have operated the business for severalweeks before it was sold, 251 S.W.3d at 539,but she does not make that argument here.

4. CROWN HOLDINGS, INC., 2009 ANNUAL REPORT

(FORM 10–K) iii, 51, 88, 96, 104 (Mar. 1, 2010)(annual reports are available online at http://

investors.crowncork.com/phoenix.zhtml?c=85121&p=irol-reports, and Form 10–K fil-ings are available at http://www.sec.gov/cgi-bin/browse-edgar?CIK=0001219601&action=getcompany).

5. CROWN HOLDINGS, INC., 2003 ANNUAL REPORT

(FORM 10–K) 9, 39 (Mar. 12, 2004) (the Com-pany estimated that its probable and estima-ble liability for pending and future claimswould range between $239 and $406 million).Crown’s parent’s 2009 Annual Report esti-mates future payments through 2019 of $230million. CROWN HOLDINGS, INC., 2009 ANNUAL

REPORT 13, 23, 64.


coverage totaled $3.683 million.6

At first, Crown did not contest its suc-cessor liability to the Robinsons for anycompensatory damages; consequently, thetrial court granted the Robinsons’ motionfor partial summary judgment on that is-sue. But about the same time, the TexasLegislature enacted Chapter 149 of theTexas Civil Practice and Remedies Code,which limits certain corporations’ succes-sor liability for asbestos claims.7 Chapter149 applies (with exceptions not relevanthere) to ‘‘a domestic corporation or a for-eign corporation that has TTT done busi-ness in this state and that is a successorwhich became a successor prior to May 13,1968’’ 8—a date by which, the Legislatureappears to have thought, the dangers of

asbestos should have been commonlyknown.9 For a covered corporation (againwith some exceptions not relevant here),‘‘the cumulative successor asbestos-relatedliabilities TTT are limited to the fair marketvalue of the total gross assets of the trans-feror determined as of the time of themerger or consolidation’’,10 including ‘‘theaggregate coverage under any applicableliability insurance that was issued to thetransferor TTT collectable to cover succes-sor asbestos-related liabilities’’.11 This capdoes not apply to a successor that contin-ued in the asbestos business after the con-solidation or merger.12 By restricting ap-plication of the cap to a corporation thathad never engaged in selling asbestosproducts itself and had succeeded to an-

6. Prior to 1998, amounts paid to claimantswere covered by a fund of $80 million result-ing from a 1985 settlement with carriers in-suring Crown Cork through 1976, whenCrown Cork became self-insured. CROWN

HOLDINGS, INC., 2002 ANNUAL REPORT 15, 34(Mar. 19, 2003).

7. Act of June 2, 2003, 78th Leg., R.S., ch. 204,§ 17.01, 2003 Tex. Gen. Laws 847, 892–896.

8. TEX. CIV. PRAC. & REM.CODE § 149.002(a).‘‘Successor’’ is defined as ‘‘a corporation thatassumes or incurs, or has assumed or in-curred, successor asbestos-related liabilities’’,id. § 149.001(4), defined broadly as ‘‘any lia-bilities, whether known or unknown, assertedor unasserted, absolute or contingent, ac-crued or unaccrued, liquidated or unliquidat-ed, or due or to become due, that are relatedin any way to asbestos claims that were as-sumed or incurred by a corporation as aresult of or in connection with a merger orconsolidation’’, id. § 149.001(3). Asbestosclaims include any claim for property damageor personal injury ‘‘wherever or whenevermade, for damages, losses, indemnification,contribution, or other relief arising out of,based on, or in any way related to asbestos’’.Id. § 149.001(1).

9. Although there was growing awareness ofthe dangers of exposure to asbestos before themid–1960s, Dr. Irving J. Selikoff is widelycredited with publicizing those dangers in his

1965 article, The Occurrence of Pleural Calci-fication Among Asbestos Insulation Workers,132 ANN. N.Y. ACAD. OF SCI. 351 (1965). OnMay 13, 1968, the American Conference ofGovernmental Industrial Hygienists reducedthe recommended workplace limit for asbes-tos in the air. This was, according to thelegislative record, ‘‘[t]he earliest date afterSelikoff’s warnings when even a quasi-gov-ernmental organization in the United Statessuggested a tighter standard for asbestos inthe workplace’’. H.J. of Tex., 78th Leg., R.S.6044 (June 1, 2003) (statement of legislativeintent by Rep. Nixon on amendments con-cerning successor asbestos-related civil liabili-ties arising from certain mergers) (Journalavailable at http://www.journals.house.state.tx.us/hjrnl/78r/html/home.htm).

10. TEX. CIV. PRAC. & REM.CODE § 149.003(a).

11. Id. § 149.004(c).

12. Id. § 149.002(b)(5) (‘‘The limitations inSection 149.003 shall not apply to TTT a suc-cessor that, after a merger or consolidation,continued in the business of mining asbestosor in the business of selling or distributingasbestos fibers or in the business of manufac-turing, distributing, removing, or installingasbestos-containing products which were thesame or substantially the same as those prod-ucts previously manufactured, distributed, re-moved, or installed by the transferorTTTT’’).


other’s liability for asbestos claims at atime when the extent of that liability wasnot fully appreciated, the supporters ofChapter 149 intended to protect only whatthey called the ‘‘innocent successor’’.

Chapter 149 contains a choice-of-lawprovision, making it applicable, ‘‘to the full-est extent permissible under the UnitedStates Constitution, TTT to the issue ofsuccessor asbestos-related liabilities’’ inTexas courts.13 Furthermore, the Legisla-ture made Chapter 149 applicable to allactions:

(1) commenced on or after the effec-tive date of this Act; or

(2) pending on that effective date andin which the trial, or any new trial orretrial following motion, appeal, or oth-erwise, begins on or after that effectivedate.14

Because the Act of which Chapter 149 waspart, House Bill 4, passed by more than atwo-thirds vote in both the House andSenate,15 it took effect immediately on ap-proval by the Governor,16 which occurredon June 11, 2003.

House Bill 4 was massive tort reformlegislation, of which Chapter 149 was avery small piece—two pages of a 52–pagebill.17 Chapter 149 was not included in thebill as filed but was added when the billcame to the House floor by an amendmentoffered by the bill’s sponsor. When askedwhich manufacturers ‘‘in particular’’ wouldbe protected, the sponsor replied that hewas ‘‘advised that there’s one in Texas,Crown Cork and Seal’’.18 Although Housedebate on the whole bill took days, debateon Chapter 149 lasted just over an hour.19

Four unfriendly amendments,20 one of

13. Id. § 149.006.

14. Act of June 2, 2003, 78th Leg., R.S., ch.204, § 17.02, 2003 Tex. Gen. Laws 847, 895.

15. The vote in each chamber was well overtwo-thirds, 114 yeas to 32 nays in the House,H.J. of Tex., 78th Leg., R.S. 6041–6042 (June1, 2003), and 27 yeas to 4 nays in the Senate,S.J. of Tex., 78th Leg., R.S. 5008 (June 1,2003).

16. TEX. CONST. art. III, § 39 (‘‘No law passedby the Legislature, except the general appro-priation act, shall take effect or go into forceuntil ninety days after the adjournment of thesession at which it was enacted, unless theLegislature shall, by a vote of two-thirds of allthe members elected to each House, other-wise direct; said vote to be taken by yeas andnays, and entered upon the journals.’’). SeeMann v. Gulf States Utils. Co., 167 S.W.2d557, 560 (Tex.Civ.App.-Austin 1942, writref’d) (‘‘[W]here a statute is passed with theemergency clause by the required vote whenapproved by the Governor, it becomes effec-tive and immediately operative.’’).

17. Among other things, House Bill 4 limitedattorney fees in class actions (§ 1.01), provid-ed for an offer-of-judgment procedure thatcould result in the shifting of attorney feesand expenses (§ 2.01), created a multidistrict

litigation panel and provided for the transferof cases for consolidated and coordinated pre-trial proceedings (§ 3.02), tightened venuestatutes (§§ 3.03–.04), provided for joinder ofresponsible third parties (§ 4.04), revampedproportionate responsibility among joint tort-feasors (§§ 4.06–.07), restricted recovery inproduct liability cases (§§ 5.01–.02), limitedthe amounts required for supersedeas bonds(§ 7.02), rewrote statutes limiting health careliability claims (§ 10.01), limited the liabilityof volunteer fire fighters, teachers, and othergovernment employees (§§ 11.01, 11.05,15.02–.05, 19.01–.02), and further limited re-covery of exemplary and noneconomic dam-ages (§§ 13.02–.09). Act of June 2, 2003,78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws847.

18. Debate on Tex. H.B. 4 on the Floor of theHouse, 78th Leg., R.S. (Mar. 25, 2003) (state-ment of Rep. Joe Nixon) (archived videoavailable at http://www.house.state.tx.us/media/chamber/78.htm) (video time 5:04:24–40).

19. Id. at 4:52:40–6:09:50.

20. Amendments 7, 9, 10, and 11 to Amend-ment 6 to Committee Substitute for HouseBill 4 were tabled. H.J. of Tex., 78th Leg.,


which would have made Chapter 149 inap-plicable to ‘‘successor asbestos-related lia-bilities that were assumed or incurred be-fore [its] effective date’’,21 all failed by widemargins. In the Senate, Chapter 149 wassignificantly revised but drew only onebrief comment in that chamber, this obser-vation by the committee chair as hearingscommenced: ‘‘This, members, is theCrown Cork and Seal asbestos issue.What we have put in this bill is what Iunderstand to be an agreed arrangementbetween all of the parties in this matter.’’ 22

No legislative findings or statement ofpurpose accompanied Chapter 149. Butafter the conference committee report onHouse Bill 4 was adopted in the House, thesponsor inserted a ‘‘statement of legislativeintent’’ in the House Journal, which did notmention Crown and explained the policybasis for Chapter 149 as follows:

A corporation is currently liable up toits total value for all injuries it causes.If that corporation merges with a muchlarger corporation, however, the succes-sor corporation is liable for the injuriescaused by its predecessor (even thoughnot caused in any way by the successor)up to the successor’s much higher value.In the case of long-tailed and unknownasbestos-related liabilities, a much larg-er successor can easily be bankruptedby the asbestos-related liabilities it inno-

cently received from a much smallerpredecessor with which it merged[many] decades ago.

To eliminate that unfairness—andeven to save successor corporations frombankruptcy—some have proposed a newrule limiting liability especially for as-bestos-related successor liabilities ac-quired solely through a merger. Thesuccessor would be liable only up to theentire gross asset value of the predeces-sor from whom it received the asbestos-related liabilities.23

The statement described Chapter 149 as a‘‘new concept’’ that was being tested ‘‘bytaking one step at a time and providingrealistic relief to those innocent successorcorporations most at peril financially with-out limiting every type of asbestos liabili-ty.’’ 24 According to the statement, Chap-ter 149’s restrictions had been crafted toensure that ‘‘the benefits of this legislationshould be limited TTT to those successorcorporations who were the most innocentabout the potential hazards of asbestos’’and ‘‘were also at the greatest financialperil, especially those threatened withbankruptcy’’.25

Crown promptly moved for summaryjudgment under the new law, requestingthat the prior order establishing its suc-cessor liability to the Robinsons be vacat-

R.S. 818–819 (Mar. 25, 2003) (text of amend-ments available at http://www.capitol.state.tx.us/Search/AmendSearchResults.aspx?Leg=78&Sess=R&Bill=HB4Hse=1&Sen=0&Auth=All&2nd=1&3rd=1&Type=All&Action=All&Dateon=&Srch=simple&All=&Any=&Xact=&Xclude=&Custom=&ID=hlQCrLY8x).

21. Amendment 9 to Amendment 6 to Commit-tee Substitute for House Bill 4 (available athttp://www.capitol.state.tx.us/tlodocs/78R/amendments/pdf/HB00004H29.PDF).

22. Hearings on the Proposed Senate Substi-tute for H.B. 4 Before the S. Comm. on State

Affairs, 78th Leg., R.S. (Apr. 30, 2003) (State-ment of Sen. Bill Ratliff, Chairman, S. Comm.on State Affairs) (archived video available athttp://www.senate.state.tx.us/avarchive/ andhttp://www.senate.state.tx.us/75r/Senate/commit/c570/c570 78.htm) (video time 19:00–19:23).

23. H.J. of Tex., 78th Leg., R.S. 6042–6043(June 1, 2003).

24. Id. at 6043.

25. Id.


ed and that their claims for asbestos expo-sure be dismissed. Crown asserted thatthe summary judgment evidence estab-lished that its merger with Mundet oc-curred before May 13, 1968, that it hadnever engaged in Mundet’s insulationbusiness, and that its successor asbestos-related liabilities, already more than $413million, greatly exceeded the fair marketvalue of Mundet’s total gross assets deter-mined as required by the statute 26—about$15 million in 1966 (some $57 million in2003 dollars). Thus, Crown contended,Chapter 149 barred the Robinsons fromrecovering on their claims. In response,the Robinsons argued that the record didnot establish the applicability of Chapter149,27 or if it did, the statute violated sev-eral provisions of the Texas Constitution.28

The trial court granted Crown’s motion.Days later, John Robinson died.29 Bar-bara Robinson amended her petition toassert statutory wrongful death 30 and sur-vival actions 31 against Crown and the oth-er defendants still remaining in the case.

(Several defendants had settled foramounts totaling $859,067 and been dis-missed.) Without addressing these statu-tory actions, Crown moved to sever thesummary judgment to make it final andappealable,32 and the trial court grantedthe motion. The court also stayed pro-ceedings in Robinson’s case against theother defendants.

On appeal, Robinson contends thatChapter 149 is a retroactive law prohibitedby article I, section 16 of the Texas Con-stitution. The law is well-settled, she as-serts, that the Legislature has no authori-ty to extinguish vested rights, and thather accrued cause of action against Crownis a vested right. A majority of the courtof appeals did not ‘‘find the law on vestedrights to be as consistent and lucid asMrs. Robinson claims’’ 33 and concludedthat it provides ‘‘no clear answer’’ towhether Chapter 149 is an invalid retroac-tive law.34 Relying on this Court’s deci-sion in Barshop v. Medina County Under-

26. See TEX. CIV. PRAC. & REM.CODE § 149.004.

27. The Robinsons disputed Crown’s valuationof Mundet’s total gross assets and, as notedabove, Crown’s assertion that Mundet hadceased its insulation business before Crownacquired its stock, so that Crown never en-gaged in that business, even as Mundet’s ma-jority stockholder. Robinson raised the latterargument in the court of appeals. 251S.W.3d at 539–540. Robinson does not makeeither argument in this Court.

28. The Robinsons argued that Chapter 149 asapplied violates Texas Constitution art. I, § 13(‘‘All courts shall be open, and every personfor an injury done him TTT shall have remedyby due course of law.’’); art. I, § 16 (‘‘No TTT

retroactive law, or any law impairing the obli-gation of contracts, shall be made.’’); art. I,§ 17 (‘‘No person’s property shall be takenTTT without adequate compensationTTTT’’);art. I, § 19 (‘‘No citizen of this State shall bedeprived of TTT property TTT except by the duecourse of the lawTTTT’’); and art. III, § 56

(‘‘The Legislature shall not TTT pass any TTT

special lawTTTT’’).

29. After John died, Robinson asserted the ad-ditional argument on motion for new trialthat Chapter 149 violated art. XVI, § 26 of theTexas Constitution (‘‘Every TTT corporationTTT that may commit a homicide, throughwilful act, or omission, or gross neglect, shallbe responsible, in exemplary damages, to thesurviving TTT widowTTTT’’).

30. See TEX. CIV. PRAC. & REM.CODE §§ 71.002,71.009.

31. See id. § 71.021.

32. The Robinsons had asserted claims againstCrown that were not disposed of by the sum-mary judgment, but they were later nonsuitedand dismissed.

33. 251 S.W.3d 520, 526 (Tex.App.-Houston[14th Dist.] 2006).

34. Id. at 527.


ground Water Conservation District,35 thecourt decided that whether a law is uncon-stitutionally retroactive depends not onwhether it infringes upon a vested rightbut on whether it is a ‘‘ ‘valid exercise ofthe police power by the Legislature tosafeguard the public safety and wel-fare’ ’’.36 Whether an exercise of the po-lice power is valid, the court of appealsdetermined, depends on

(1) whether the act is appropriate andreasonably necessary to accomplish apurpose within the scope of the policepower, and (2) whether the ordinance isreasonable by not being arbitrary andunjust or whether the effect on individu-als is unduly harsh so that it is out ofproportion to the end sought to be ac-complished.37

The court found that ‘‘the purpose forwhich [Chapter 149] was enacted—the fi-nancial viability of the State and busi-nesses in the State—is a valid exercise ofpolice power.’’ 38 The court further foundthat the restrictions in the statute left ‘‘thepool of potential defendants as large aspossible for claimants having valid claimsfor damages resulting from asbestos prod-ucts’’,39 thereby limiting the ‘‘detrimentalimpact on plaintiffs such as the Robinsonso that [it] was not out of proportion to theend sought’’.40 Concluding that deference

must be given to the Legislature in theexercise of its police power, the court heldthat Chapter 149 is not unconstitutionallyretroactive because it is ‘‘(1) within theLegislature’s police power and (2) narrow-ly tailored (a) to protect the most innocentcorporations hard hit by asbestos litigationbut (b) to leave the potential pool of asbes-tos defendants as large as possible.’’ 41

Accordingly, the court affirmed the sum-mary judgment.42

The dissent disagreed with the majori-ty’s approach to assessing unconstitution-ality. It argued that ‘‘the Legislature hasno police power to enact retroactive lawsin violation of section 16’’, even if reason-ably exercised.43 Barshop notwithstand-ing, the dissent insisted, ‘‘the weight ofprecedent TTT requires the use of the vest-ed-rights analysis.’’ 44 The dissent con-tended that ‘‘an accrued cause of action isa vested right’’,45 rejecting some caselawthat ‘‘an accrued claim is not vested until itis reduced to a judgment final by appeal’’.46

Thus, the dissent reasoned, ‘‘[b]ecauseMrs. Robinson’s claims accrued and werepending in the trial court when [Chapter149] took effect, Mrs. Robinson held vestedrights in these claims that could not bedestroyed’’,47 irrespective of the fact thatChapter 149 ‘‘does not bar all of Mrs.Robinson’s remedy for the claimed injuries

35. 925 S.W.2d 618 (Tex.1996).

36. 251 S.W.3d at 523 (quoting Barshop, 925S.W.2d at 633–634).

37. Id. at 532.

38. Id.

39. Id. at 532–533.

40. Id. at 532.

41. Id. at 533.

42. 251 S.W.3d at 541. The court rejectedRobinson’s other two arguments, that Chapter149 is a special law prohibited by article III,

section 56 of the Texas Constitution, and thatCrown has not established the factual predi-cate for applying Chapter 149 in this case.Id. at 535–540. Robinson makes the formerargument in this Court, but we do not reachit.

43. Id. at 541.

44. Id.

45. Id. at 549.

46. Id. at 550.

47. Id.


because she can sue other companies notprotected’’.48 Without assessing the rea-sonableness of the Legislature’s action, thedissent concluded that Chapter 149 is un-constitutionally retroactive because the‘‘Legislature created a new substantive de-fense to successor liability and made itimmediately effective in all pending cases,destroying Mrs. Robinson’s vested rightsin her accrued tort claims againstCrown’’.49

We granted Robinson’s petition for re-view.50 Another court of appeals, also di-vided, has since reached the opposite re-sult from the court of appeals in thiscase.51

IIAs a threshold matter, it is important to

note the precise issue before us. The Rob-insons’ pleading on which Crown movedfor summary judgment asserted common-law causes of action for negligence andstrict liability, and claimed compensatoryand punitive damages.52 For herself, Bar-bara claimed damages for John’s medicalexpenses that she had incurred, as well asher loss of consortium and mental anguish,and punitive damages. Had John lived,the summary judgment would have dis-

posed of all the Robinsons’ claims againstCrown.

But John died a few days after summaryjudgment was granted, and Robinsonamended her petition to add statutorywrongful death and survival actions. Therecord does not reflect that Crown movedfor summary judgment on Robinson’s stat-utory claims, or that the trial court everdisposed of them specifically. The trialcourt and parties appear to have assumed,correctly, that the summary judgment wasnevertheless final because Robinson’s stat-utory claims are wholly derivative ofJohn’s common-law claims, and the adjudi-cation of the latter effectively disposed ofthe former.53

But even though the summary judgmentwas final, an analysis of the retroactiveeffect of Chapter 149 on common-lawclaims and statutory claims presents dif-ferent considerations. As we discuss morefully below, Crown argues that in deter-mining whether the constitutional prohibi-tion against retroactive laws applies in thiscase, it is significant that successor liabilityis a creature of statute. The same argu-ment could be made to Robinson’s wrong-ful death and survival claims, though not

48. 251 S.W.3d at 550.

49. Id. at 551.

50. 51 Tex. Sup.Ct. J. 292 (Jan. 11, 2008).

51. Satterfield v. Crown Cork & Seal Co., 268S.W.3d 190 (Tex.App.-Austin 2008, no pet.).

52. The Robinsons also asserted a claim forconspiracy, but it was later nonsuited.

53. Russell v. Ingersoll–Rand Co., 841 S.W.2d343, 345–346 (Tex.1992) (‘‘The survival ac-tion, as it is sometimes called, is wholly deriv-ative of the decedent’s rights. The actionablewrong is that which the decedent sufferedbefore his death. The damages recoverableare those which he himself sustained while hewas alive and not any damages claimed inde-pendently by the survival action plaintiffs (ex-

cept that funeral expenses may also be recov-ered if they were not awarded in a wrongfuldeath action). Any recovery obtained flows tothose who would have received it had heobtained it immediately prior to his death—that is, his heirs, legal representatives andestate. Defenses that could have been raisedagainst a claim by the injured person mayalso be raised against the same claim assertedby the person’s heirs and estateTTTT Wrong-ful death actions are also derivative of thedecedent’s rights.’’) (citing TEX. CIV. PRAC. &

REM.CODE § 71.003(a) (‘‘This subchapter [cre-ating a wrongful death cause of action] ap-plies only if the individual injured would havebeen entitled to bring an action for the injuryif the individual had lived or had been bornalive.’’) (other citations omitted)).


to the common-law claims the Robinsonspreviously asserted. Also, Robinson ar-gues that it is important for our constitu-tional analysis that the common-law claimsbarred by Chapter 149 had both accruedand were the subject of a pending lawsuitbefore the statute was enacted. But nei-ther is true of her statutory claims.

The parties have not briefed—or evenmentioned—any of these issues but haveconfined their arguments regarding wheth-er Chapter 149 is an unconstitutionalityretroactive law as applied to the common-law claims the Robinsons asserted beforeJohn’s death, which were adjudicated bysummary judgment. These arguments arethe only ones we address. We intimate noview on whether Chapter 149 limits Robin-son’s statutory wrongful death and surviv-al claims except insofar as they are deriva-tive of the claims specifically adjudicatedby the trial court.

IIIBefore we can decide whether Chapter

149 is unconstitutionally retroactive, wemust first resolve the parties’ dispute overthe proper standards to be applied in mak-ing that determination. Robinson, like thedissenting opinion in the court of appeals,argues that the test is simply whethervested rights have been impaired, period;if so, the law is prohibited, regardless ofthe Legislature’s reasons for enacting it.Crown counters that the majority opinionin the court of appeals was correct in

focusing instead on the reasonableness ofthe Legislature’s exercise of its police pow-er; the prohibition against retroactive lawsdoes not invalidate a proper exercise ofthat power despite its impairment of pri-vate rights.54 As each position finds sup-port in our case law, we begin by returningto first principles. We conclude that thehistory and purpose of the constitutionalprovision require a fuller statement of itsproper application than we have previouslygiven.

AThere exists in this country, as the Unit-

ed States Supreme Court observed inLandgraf v. USI Film Products, a ‘‘pre-sumption against retroactive legislation[that] is deeply rooted in our jurispru-dence[ ] and embodies a legal doctrine cen-turies older than our RepublicTTTT [T]he‘principle that the legal effect of conductshould ordinarily be assessed under thelaw that existed when the conduct tookplace has timeless and universal humanappeal.’ ’’ 55 In a concurring opinion in anearlier case, Justice Scalia noted that thisprinciple

was recognized by the Greeks, by theRomans, by English common law, andby the Code Napoleon. It has long beena solid foundation of American lawTTTT

Justice Story said that ‘‘retrospectivelaws are TTT generally unjust; and TTT

neither accord with sound legislation norwith the fundamental principles of thesocial compact.’’ 56

54. The following have submitted amicus curi-ae briefs in support of Crown: the State ofTexas, Texas Civil Justice League, AmericanTort Reform Association, National Federationof Independent Business Legal Foundation,Chamber of Commerce of the United States ofAmerica, National Association of Manufactur-ers, Property Casualty Insurers Association ofAmerica, American Chemistry Council, Na-tional Association of Mutual Insurance Com-panies, 3M Company, Texans for Lawsuit Re-

form, and Product Liability Advisory Council,Inc.

55. 511 U.S. 244, 265, 114 S.Ct. 1483 (1994)(quoting Kaiser Aluminum & Chem. Corp. v.Bonjorno, 494 U.S. 827, 855, 110 S.Ct. 1570,108 L.Ed.2d 842 (1990) (Scalia, J., concur-ring)).

56. Kaiser, 494 U.S. at 855–856, 110 S.Ct.1570 (Scalia, J., concurring) (citations omit-ted).


[1–5] The United States Constitutiondoes not expressly prohibit retroactivelaws, but ‘‘the antiretroactivity principlefinds expression’’ in its prohibitions of billsof attainder, ex post facto laws, and statelaws impairing the obligation of con-tracts.57 The thrust of each is easily stat-ed:

The Ex Post Facto Clause flatly prohib-its retroactive application of penal legis-lationTTTT States [are prohibited] frompassing another type of retroactive leg-islation, laws ‘‘impairing the Obligationof Contracts.’’ TTT The prohibitions on‘‘Bills of Attainder’’ in Art. 1 §§ 9–10,prohibit legislatures from singling outdisfavored persons and meting out sum-mary punishment for past conduct.58

But the application of each prohibitionmust be measured by the object to beobtained. Thus, while the bill of attainderoriginated as an English parliamentary actsentencing to death someone who had at-tempted to overthrow the government,59

the proper scope of the Bill of AttainderClause, and its relevance to contempo-rary problems, must ultimately besought by attempting to discern the rea-sons for its inclusion in the Constitution,and the evils it was designed to elimi-nate. The TTT Bill of Attainder Clausewas intended not as a narrow, technical(and therefore soon to be outmoded)prohibition, but rather as an implemen-tation of the separation of powers, ageneral safeguard against legislative ex-

ercise of the judicial function, or moresimply—trial by legislature.60

With respect to ex post facto laws:

The prohibition, in the letter, is not topass any law concerning, and after thefact; but the plain and obvious meaningand intention of the prohibition is this;that the Legislatures of the severalstates, shall not pass laws, after a factdone by a subject, or citizen, which shallhave relation to such fact, and shall pun-ish him for having done it.61

And as for the prohibition against lawsimpairing contract obligations, Chief Jus-tice Marshall observed:

Taken in its broad, unlimited sense, theclause would be an unprofitable and vex-atious interference with the internal con-cerns of a State, would unnecessarilyand unwisely embarrass its legislation,and render immutable those civil institu-tions, which are established for purposesof internal government, and which, tosubserve those purposes, ought to varywith varying circumstances. That asthe framers of the constitution couldnever have intended to insert in thatinstrument, a provision so unnecessary,so mischievous, and so repugnant to itsgeneral spirit, the term ‘‘contract ’’ mustbe understood in a more limited sense.That it must be understood as intendedto guard against a power of at leastdoubtful utility, the abuse of which had

57. Landgraf, 511 U.S. at 266, 114 S.Ct. 1483;see also U.S. CONST. art. I, § 9, cl. 3 (‘‘No Billof Attainder or ex post facto Law shall bepassed.’’); id. art. I, § 10, cl. 1 (‘‘No Stateshall TTT pass any Bill of Attainder, ex postfacto Law, or Law impairing the Obligation ofContractsTTTT’’); U.S. Trust Co. of N.Y. v. N.J.,431 U.S. 1, 17 n. 13, 97 S.Ct. 1505, 52L.Ed.2d 92 (1977) (‘‘The Due Process Clauseof the Fourteenth Amendment generally doesnot prohibit retrospective civil legislation, un-less the consequences are particularly harsh

and oppressive.’’ (internal quotation marksomitted)).

58. Landgraf, 511 U.S. at 266, 114 S.Ct. 1483.

59. United States v. Brown, 381 U.S. 437, 441,85 S.Ct. 1707, 14 L.Ed.2d 484 (1965).

60. Id. at 442, 85 S.Ct. 1707.

61. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1L.Ed. 648 (1798).


been extensively felt; and to restrainthe legislature in future from violatingthe right to property. That anterior tothe formation of the constitution, acourse of legislation had prevailed inmany, if not in all, of the States, whichweakened the confidence of man in man,and embarrassed all transactions be-tween individuals, by dispensing with afaithful performance of engagements.To correct this mischief, by restrainingthe power which produced it, the Statelegislatures were forbidden ‘‘to pass anylaw impairing the obligation of con-tracts,’’ that is, of contracts respectingproperty, under which some individualcould claim a right to something benefi-cial to himself; and that, since the clausein the constitution must in constructionreceive some limitation, it may be con-fined, and ought to be confined, to casesof this description; to cases within themischief it was intended to remedy.62

[6] Texas Constitutions have containedthese provisions as well as a general prohi-bition against retroactive or retrospectivelaws.63 This prohibition against retroac-

tive laws, like other constitutional bars,must be governed by its purpose, for ‘‘ret-roactive’’ simply means ‘‘[e]xtending inscope or effect to matters which have oc-curred in the past; retrospective’’,64 and‘‘retrospective’’, even more simply, means‘‘[d]irected to, contemplative of, pasttime’’.65 In our first case construing theretroactivity clause, DeCordova v. City ofGalveston, Chief Justice Hemphill cau-tioned that applying this prohibition with-out regard to the objects to be achievedwould have

a latitude of signification, which wouldembarrass legislation on existing or pastrights and matters, to such an extent asto create inextricable difficulties, and, infact, to demonstrate that it was incapa-ble of practical application. A retro-spective law literally means a law whichlooks backwards, or on things that arepast; or if it be taken to be the same asretroactive, it means to act on thingsthat are past. If it be understood in itsliteral meaning, without regard to theintent, then all laws, having an effect onpast transactions or matters, or by

62. Trs. of Dartmouth Coll. v. Woodward, 17U.S. (4 Wheat.) 518, 628–629, 4 L.Ed. 629(1819); see U.S. Trust Co. of N.Y. v. N.J., 431U.S. 1, 21, 97 S.Ct. 1505, 52 L.Ed.2d 92(1977) (‘‘Although the Contract Clause ap-pears literally to proscribe ‘any’ impairment,TTT ‘the prohibition is not an absolute one andis not to be read with literal exactness like amathematical formula.’ ’’ (quoting HomeBldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398,428, 54 S.Ct. 231, 78 L.Ed. 413 (1934))).

63. TEX. CONST. art. I, § 16 (‘‘No bill of attain-der, ex post facto law, retroactive law, or anylaw impairing the obligation of contracts shallbe made.’’); TEX. CONST. OF 1869, art. I, § 14(‘‘No bill of attainder, ex post facto law, retro-active law, or any law impairing the obli-gation of contracts, shall be made; TTT norshall any law be passed depriving a party ofany remedy for the enforcement of a contract,which existed when the contract was made.’’);TEX. CONST. OF 1866, art. I, § 14 (‘‘No bill of

attainder, ex post facto law, retroactive law,or any law impairing the obligation of con-tracts, shall be madeTTTT’’); TEX. CONST. OF

1861, art. I, § 14 (same); TEX. CONST. OF 1845,art. I, § 14 (same); REPUB. TEX. CONST. OF 1836,DEC. OF RIGHTS § 16 (‘‘No retrospective or expost facto law, or laws impairing the obli-gations of contracts shall be made.’’). In the1845 Constitutional Convention, the prohibi-tion against retrospective laws was omittedfrom the first draft of the Bill of Rights,JOURNAL OF THE CONSTITUTIONAL CONVENTION OF

TEXAS 34 (1845), but one against retroactivelaws was inserted just before final passage byfloor amendment by Thomas Jefferson Rusk,formerly Chief Justice of the Supreme Courtof Texas, id. at 264.

64. 13 THE OXFORD ENGLISH DICTIONARY 796 (2ded.1989).

65. Id. at 801.


which the slightest modification may bemade of the remedy for the recovery ofrights accrued, or the redress of wrongsdone, are prohibited equally with thosewhich divest rights, impair the obli-gation of a contract, or make an act,innocent at the time it was done, subse-quently punishable as an offence.66

The constitutional prohibition was not in-tended to operate so indiscriminately.‘‘Mere retroactivity is not sufficient to in-validate a statuteTTTT Most statutes oper-ate to change existing conditions, and it isnot every retroactive law that is unconsti-tutional.’’ 67

The presumption against retroactivityhas two fundamental objectives identifiedby the Supreme Court in Landgraf. First,it protects the people’s reasonable, settledexpectations.

Elementary considerations of fairnessdictate that individuals should have anopportunity to know what the law is andto conform their conduct accordingly;settled expectations should not be lightlydisruptedTTTT In a free, dynamic soci-ety, creativity in both commercial andartistic endeavors is fostered by a ruleof law that gives people confidence aboutthe legal consequences of their actions.68

In other words, the rules should notchange after the game has been played.Second, the presumption against retroac-tivity protects against abuses of legislativepower.

The Legislature’s unmatched powers al-low it to sweep away settled expecta-tions suddenly and without individual-ized consideration. Its responsivity topolitical pressures poses a risk that itmay be tempted to use retroactive legis-lation as a means of retribution againstunpopular groups or individuals.69

As James Madison argued, ‘‘retroactivelegislation also offer[s] special opportuni-ties for the powerful to obtain special andimproper legislative benefits.’’ 70

Still, not all retroactive legislation isbad. Landgraf also notes:

Retroactivity provisions often serve en-tirely benign and legitimate purposes,whether to respond to emergencies, tocorrect mistakes, to prevent circumven-tion of a new statute in the intervalimmediately preceding its passage, orsimply to give comprehensive effect to anew law Congress considers salutary.71

Constitutional provisions limiting retroac-tive legislation must therefore be appliedto achieve their intended objectives—pro-tecting settled expectations and preventingabuse of legislative power.

BIn DeCordova, Chief Justice Hemphill

wrote that ‘‘[l]aws are deemed retrospec-tive and within the constitutional prohibi-tion, which by retrospective operation, de-stroy or impair, vested rights’’.72 For thisformulation of the prohibition, he, likemany judges since, cited Justice Story’sstatement in Society for the Propagation

66. 4 Tex. 470, 475–476 (1849).

67. Tex. Water Rights Comm’n v. Wright, 464S.W.2d 642, 648 (Tex.1971); accord Subaru ofAmerica, Inc. v. David McDavid Nissan, Inc.,84 S.W.3d 212, 219 (Tex.2002) (‘‘[N]ot allstatutes that apply retroactively are constitu-tionally prohibited.’’).

68. Landgraf v. USI Film Prods., 511 U.S. 244,265–266, 114 S.Ct. 1483, 128 L.Ed.2d 229(1994) (text and citations omitted).

69. Id. at 266, 114 S.Ct. 1483.

70. Id. at 267 n. 20, 114 S.Ct. 1483.

71. Id. at 267–268, 114 S.Ct. 1483.

72. 4 Tex. 470, 479 (1849).


of the Gospel v. Wheeler, applying the NewHampshire constitution’s prohibitionagainst retroactive laws:

[E]very statute, which takes away orimpairs vested rights acquired under ex-isting laws, or creates a new obligation,imposes a new duty, or attaches a newdisability, in respect to transactions orconsiderations already past, must bedeemed retrospectiveTTTT 73

But as both cases explained, ‘‘impairs vest-ed rights’’ has special meaning. ‘‘[A] stat-ute merely regulating a remedy,’’ JusticeStory added, ‘‘and prescribing the modeand time of proceeding’’ does not impairvested rights.74 Chief Justice Hemphillagreed,

unless the remedy be taken away alto-gether, or encumbered with conditionsthat would render it useless or impracti-cable to pursue it. Or, if the provisionsregulating the remedy, be so unreason-able as to amount to a denial of right, as,for instance, if a statute of limitations,applied to existing causes, barred allremedy or did not afford a reasonableperiod for their prosecution; or if anattempt were made by law, either byimplication or expressly, to revive causesof action already barred; such legisla-tion would be retrospective within theintent of the prohibition, and wouldtherefore be wholly inoperative.75

In other words, in applying the prohibitionagainst retroactivity, a law that impairs aremedy does not impair a right, exceptsometimes. On further reflection, this

Court conceded more than a century later:‘‘Remedies are the life of rights. Whileour precedents recognize and apply thedistinction [between a remedy and a right],they also recognize that the two terms areoften inseparable.’’ 76

The obscurity in the right/remedy dis-tinction typifies the problems in using‘‘impairs vested rights’’ as a test for un-constitutional retroactivity, as our cases il-lustrate. In DeCordova, we held that astatute of limitations on suits for debt en-acted after the defendant executed notespayable to the plaintiff but before theymatured merely limited the plaintiff’s col-lection remedy and therefore was not un-constitutionally retroactive.77 The ideathat the debt had not been extinguished,only the means of collection, might beviewed by most creditors as a distinctionwithout a difference. But the Court rea-soned that the absence of a statute oflimitations when the notes were executeddid not give the plaintiff a vested right tosue forever. In Texas Water Rights Com-mission v. Wright, we upheld a statuteauthorizing forfeiture of a water permitafter ten years of non-use, concluding thatpermit holders could reasonably expectenforcement of the ‘‘conditions inherentlyattached’’ to their permit, and that a per-mit included no right to be forever free ofa remedy to enforce those conditions.78

Moreover, a retroactive use requirementwas valid for the State ‘‘to assert andprotect its own rights and interests in thewater.’’ 79 In City of Tyler v. Likes, we

73. 22 F. Cas. 756, 767 (C.C.D.N.H.1814) (No.13,156); see Bryant Smith, Retroactive Lawsand Vested Rights, 5 TEX. L.REV. 231, 233 n.9(1927) (‘‘Justice Story’s definition of a retro-active law is perhaps the one most frequentlycited.’’).

74. Id. at 768.

75. DeCordova, 4 Tex. at 480 (citations omit-ted).

76. 464 S.W.2d 642, 648–649 (Tex.1971) (in-ternal quotation marks omitted).

77. 4 Tex. at 480–482.

78. Wright, 464 S.W.2d at 649.

79. Id.


held that a statute reclassifying a city’sproprietary functions as governmental,thereby limiting liability, affected only aremedy, not a right, even though a claim-ant would recover less or perhaps not atall.80 And in In re A.D., we held that astatute removing the limitations period forenforcing child support decrees by order-ing withholding of wages affected only aremedy, even though it expanded enforce-ment of the debt.81

In each of these cases, significant inter-ests were adversely impacted by changesin the law, yet the Court held that vestedrights were not impaired. The results ofthe cases seem entirely reasonable in avery general sense, although the claimantsin the cases doubtless had a different view,but it is not clear how they were driven bya concern for protecting vested rights. Ina recent case, Owens Corning v. Carter,we did not mention the right/remedy dis-tinction in upholding a law that requiredapplication of the statute of limitations ofthe plaintiff’s state of residence, eventhough doing so barred pending actions inTexas courts.82 We simply held that for aplaintiff who has not sued within the timepermitted by the state in which he residesand in which the cause of action arose,barring suit in Texas ‘‘is not inequitable’’.83

Nevertheless, the plaintiff in a pending

case had a viable claim that the change inthe law extinguished.

In three of these five cases, DeCordova,Wright, and Likes, it was important that,as it happened, the people involved hadample opportunity after the change in thelaw to protect their interests: four yearsto sue in DeCordova,84 seven years to re-sume pumping water in Wright,85 and twomonths to sue in Likes.86 But in the othertwo cases, A.D. and Owens Corning, thepersons affected by changes in the law hadno time to respond. We have since heldthat a change in the law need not provide agrace period to prevent an impairment ofvested rights.87

[7] ‘‘Statutes of limitations are proce-dural’’,88 but sometimes a change may im-pair vested rights. In 1887, we stated inMellinger v. City of Houston that when alaw ‘‘shall operate in favor of a defendantas a defense against a claim made againsthim, then it must be said that a rightexists, has become fixed or vested, and isbeyond the reach of retroactive legisla-tion’’.89 Thus, we said, a law extending alimitations period so as to resurrect barredclaims would be unconstitutionally retroac-tive. But only two years earlier the Unit-ed States Supreme Court had held inCampbell v. Holt that just such a law

80. 962 S.W.2d 489, 502 (Tex.1997).

81. 73 S.W.3d 244, 248–249 (Tex.2002).

82. 997 S.W.2d 560, 573 (Tex.1999).

83. Id.

84. The plaintiff sued on three promissorynotes, all executed in 1840, and maturing in1842, 1843, and 1844, respectively. The stat-ute of limitations was passed in 1841, and theplaintiff did not sue until 1849. DeCordova, 4Tex. at 470–471.

85. The plaintiffs held permits issued in 1918and 1928, but they stopped pumping water in

1954. The forfeiture statute was enacted in1957, and forfeiture was not sought until1967. Wright, 464 S.W.2d at 644.

86. The plaintiff had seventeen months to suebefore the statute was enacted and twomonths to sue after it was enacted and beforeit took effect. Likes, 962 S.W.2d at 502.

87. Barshop v. Medina Cnty. Underground Wa-ter Conservation Dist., 925 S.W.2d 618, 634(Tex.1996).

88. Baker Hughes, Inc. v. Keco R. & D., Inc., 12S.W.3d 1, 4 (Tex.1999).

89. 68 Tex. 37, 3 S.W. 249, 253 (1887).


reviving claims did not offend due processunder the United States Constitution be-cause ‘‘no right is destroyed when the lawrestores a remedy which had been lost.’’ 90

Campbell arose out of Texas, and the Su-preme Court cited this Court’s 1870 deci-sion in Bender v. Crawford,91 which heldthat a retroactive suspension of limitationsstatutes during the aftermath of the CivilWar was not a prohibited retroactive law,even though claims that would have beenbarred were not.92 Mellinger cited Camp-bell, and ‘‘not wish[ing] to be understoodas questioning its correctness’’, distin-guished the due process guarantees in thestate and federal constitutions from theprohibition of retroactive laws.93 Butwhile due process and antiretroactivitymay protect vested rights differently, Mel-linger did not explain why a limitations baris a vested right in one context but not inthe other. In other words, a law that isprohibitively retroactive might not also of-fend due process, but not because a vestedright for one is not a vested right for theother. Nor did Mellinger cite Bender.

A generation later, we held in Wilson v.Work that ‘‘it is the settled law that, aftera cause has become barred by the statuteof limitation, the defendant has a vestedright to rely on such statute as a de-fense.’’ 94 We repeated that view morerecently in Baker Hughes, Inc. v. Keco R.& D., Inc.95 The earlier confusion may beattributable to the time in which the issuesarose. Bender offered this insight:

[T]hey who talk about vested rights inthe bar of limitations should at least

remember the times in which we havebeen living; and those who think ourconstitution is not republican, nor in ac-cordance with the great republican con-ception of our institutions, should re-member that from the second of March,1861, to the twenty-ninth of March,1870, we had no republican governmentin Texas. Four years of that periodwere one of bloody and unrelenting war.From 1865 to 1870 we were a militarygovernment; he who gained a vestedright in the statute of limitations duringat least a portion of that period, gainedit only because inter arma leges silent.Vultures and wolves gain vested rightswhen armies are slaughtered, if these bevested rights.96

Bender dared to speak plainly: thereare vested rights and then there are vest-ed rights, and not all laws which may fairlybe said to retroactively impair vestedrights are constitutionally prohibited. Theproblem is not confined to the aftermath ofthe Civil War. Many years ago, one com-mentator lamented:

One’s first impulse on undertaking todiscuss retroactive laws and vestedrights is to define a vested right. Butwhen it appears, as soon happens, thatthis is impossible, one decides to fix theattention upon retroactive laws andleave the matter of definition to followrather than precede the discussion, as-suming for the purpose that a right isvested when it is immune to destruction,and that it is not vested when it is liable

90. 115 U.S. 620, 628, 6 S.Ct. 209, 29 L.Ed.483 (1885).

91. Id. at 629–630, 6 S.Ct. 209.

92. 33 Tex. 745, 759–760 (1870).

93. Mellinger, 3 S.W. at 252.

94. 122 Tex. 545, 62 S.W.2d 490, 490 (1933)(per curiam) (permission to file mandamuspetition denied).

95. 12 S.W.3d 1, 4 (Tex.1999).

96. Bender, 33 Tex. at 759.


to destruction, by retroactive legislation.The simplification of the task which thisplan seems to involve, turns out to besomething of an illusion, however, whenit appears, as also soon happens, thatone’s preconceived notions of retroactivelaws are irreconcilable with the datawith which one has to deal.97

What constitutes an impairment of vestedrights is too much in the eye of the behold-er to serve as a test for unconstitutionalretroactivity.

This can hardly be more vividly demon-strated than in today’s opinions by JUSTICE

WAINWRIGHT and JUSTICE MEDINA. The ar-guments and authorities ably marshaled ineach show a deep division over whether aretroactive restriction on a cause of actionimpairs vested rights. Of course it does, ifa claim, no matter how flimsy, is a vestedright; or not, if a claim, even a strong one,must be reduced to judgment before itbecomes a vested right. The dispute overwhether to call something a vested rightappears driven not so much by what thewords mean as by the consequence of ap-plying the label—that its impairment isprohibited. Or as one commentator hasput it: ‘‘it has long been recognized thatthe term ‘vested right’ is conclusory—aright is vested when it has been so farperfected that it cannot be taken away bystatute.’’ 98 The ‘‘impairs vested rights’’test thus comes down to this: a law isunconstitutionally retroactive if it takesaway what should not be taken away.

CIn two cases this Court has held that

retroactive laws were not constitutionallyprohibited, despite their impairment ofvested rights, because they were each avalid exercise of the Legislature’s policepower. The first, Barshop v. MedinaCounty Underground Water ConservationDistrict,99 involved a facial challenge to theEdwards Aquifer Act.100 Before the Act,withdrawal of groundwater from the Aqui-fer was unrestricted. The Act created anAuthority to regulate groundwater with-drawals, capped annual withdrawals, re-quired that wells be operated under per-mits, gave preference to existing users,and restricted withdrawals under a permitbased on the owner’s historic use.101 TheAct operated retroactively in basing theright to groundwater on historic use andgave landowners no opportunity to pre-serve their prior right to unlimited water,but we stated that ‘‘article I, section 16does not absolutely bar the Legislaturefrom enacting such statutes.’’ 102 Acknowl-edging that ‘‘retroactive laws affectingvested rights that are legally recognized orsecured are invalid’’,103 we neverthelessheld that ‘‘[a] valid exercise of the policepower by the Legislature to safeguard thepublic safety and welfare can prevail overa finding that a law is unconstitutionallyretroactive.’’ 104 The Legislature had in-cluded in the Act findings that the Author-ity was necessary ‘‘ ‘to protect terrestrialand aquatic life, domestic and municipalwater supplies, the operation of existingindustries, and the economic development

97. Bryant Smith, Retroactive Laws and VestedRights, 5 TEX. L.REV. 231, 231 (1927) (footnoteomitted).

98. Charles B. Hochman, The Supreme Courtand the Constitutionality of Retroactive Legis-lation, 73 HARV. L.REV. 692, 696 (1960).

99. 925 S.W.2d 618 (Tex.1996).

100. Act of May 30, 1993, 73d Leg., R.S., ch.626, 1993 Tex. Gen. Laws 2350.

101. Barshop, 925 S.W.2d at 624.

102. Id. at 634.

103. Id. at 633.

104. Id. at 633–634.


of the state’ ’’ 105 and that ‘‘the aquifer was‘vital to the general economy and welfareof this state.’ ’’ 106 ‘‘Based on these legisla-tive findings,’’ we concluded that the Actwas ‘‘necessary to safeguard the publicwelfare of the citizens of this state’’ andtherefore the Act’s retroactive effect didnot ‘‘render it unconstitutional’’ on itsface.107

The second case, In re A.V.,108 involvedsection 161.001 of the Texas Family Code,which lists several grounds for terminatingparental rights. An amendment had add-ed subsection (1)(Q) to the list, thus pro-viding for termination when a parent ‘‘hasknowingly engaged in criminal conduct forwhich the parent is incarcerated and un-able to care for the child ‘for not less thantwo years from the date of filing the peti-tion’ ’’.109 The issue was whether theamendment was unconstitutionally retroac-tive as applied to a parent convicted beforeit was enacted. The amendment, we not-ed, was primarily prospective, focusing on‘‘the parent’s future imprisonment and ina-bility to care for the child, not the criminalconduct that the parent committed in thepast.’’ 110 But to the extent the amend-ment had a retroactive effect, we held itwas not unconstitutional. Recognizingthat ‘‘a parent’s constitutionally-protectedrelationship with his or her children [is] aright that presumably cannot be alteredthrough retroactive application of law’’,111

we stated, quoting Barshop, that a ‘‘ ‘validexercise of the police power by the Legis-lature to safeguard the public safety andwelfare’ is a recognized exception to theunconstitutionality of retroactive laws.’’ 112

Given the Legislature’s declaration that‘‘ ‘[t]he public policy of this state [is to]provide a safe, stable, and nonviolent envi-ronment for the child’ ’’, we concluded thatpublic policy justified the statute’s retroac-tive effect.113 Furthermore, we said, ‘‘[a]law that does not upset a person’s settledexpectations in reasonable reliance uponthe law is not unconstitutionally retroac-tive.’’ 114 In our view, a person ‘‘could notreasonably expect that the State would notact to provide a safe environment for hischildren while he was imprisoned.’’ 115

Robinson does not argue that Barshopand A.V. were wrongly decided but never-theless insists that the test for unconstitu-tional retroactivity is not whether a law isa reasonable exercise of the Legislature’spolice power but whether it impairs vestedrights. In her view, rights may be ‘‘vestedfor different purposes depending on thecontext’’,116 thereby affecting the constitu-tional provision’s operation, and thus pro-hibiting retroactive laws limiting liabilityfor asbestos claims but not laws preservinggroundwater and protecting children.Stated differently: the right to sue is pro-tected from retroactive impairment while

105. Id. at 634 (quoting Act of May 30, 1993,73d Leg., R.S., ch. 626, § 1.01, 1993 Tex.Gen. Laws 2350, 2350–2351).

106. Id. (quoting Act of May 30, 1993, 73dLeg., R.S., ch. 626, § 1.06(a), 1993 Tex. Gen.Laws 2350, 2355).

107. Barshop, 925 S.W.2d at 634.

108. 113 S.W.3d 355 (Tex.2003).

109. Id. at 356 (quoting TEX. FAM. CODE

§ 161.001(1)(Q)).

110. Id. at 360.

111. Id. at 361.

112. Id. (quoting Barshop, 925 S.W.2d at 633–634).

113. Id. (quoting TEX. FAM. CODE

§ 153.001(a)(2)).

114. A.V., 113 S.W.3d at 361.

115. Id.

116. Petitioner’s Reply Brief at 15.


the rights to groundwater or one’s childrenare not. One might view this as back-wards, that a parent’s right to a child,which is ‘‘fundamental’’,117 ‘‘ ‘one of consti-tutional dimensions’ ’’,118 and ‘‘ ‘far moreprecious than any property right’ ’’,119

would be more deserving of protectionfrom impairment by retroactive laws thana claim of injury that might not even resultin recovery. But regardless of the threerights’ relative importance, Robinson’s ar-gument that they are somehow vested dif-ferently for purposes of determining un-constitutional retroactivity establishes thefundamental failure of the ‘‘impairs vestedrights’’ test.

[8] We agree with Robinson, however,that Barshop and A.V. do not except aretroactive law from the constitutional pro-hibition merely because there was a ration-al basis for its enactment, or even because,on balance, it is likely to do more goodthan harm. The Legislature found thewater-permitting scheme established inthe Edwards Aquifer Act to be necessaryto discharge its constitutional duty to con-serve groundwater,120 and the necessity ofproviding for the welfare of children ofincarcerated convicts is too obvious to re-quire justification. But necessity alonecannot justify a retroactive law. The ret-roactive laws in Barshop and A.V. werenot unconstitutional because they did notdefeat the objectives of the constitutionalprohibition. There can be no settled ex-

pectation that a limited resource likegroundwater, affected by public and pri-vate interests, will not require allocation,or that a person unable to care for hischildren has greater rights if his inabilityis due to prolonged incarceration than forother reasons. And in both cases, theLegislature acted for the general publicgood.

D

[9–11] We think our cases establishthat the constitutional prohibition againstretroactive laws does not insulate everyvested right from impairment, nor does itgive way to every reasonable exercise ofthe Legislature’s police power; it protectssettled expectations that rules are to gov-ern the play and not simply the score, andprevents the abuses of legislative powerthat arise when individuals or groups aresingled out for special reward or punish-ment. No bright-line test for unconstitu-tional retroactivity is possible. Rather, indetermining whether a statute violates theprohibition against retroactive laws in arti-cle I, section 16 of the Texas Constitution,courts must consider three factors in lightof the prohibition’s dual objectives: thenature and strength of the public interestserved by the statute as evidenced by theLegislature’s factual findings; the natureof the prior right impaired by the statute;and the extent of the impairment.121 The

117. In re Chambless, 257 S.W.3d 698, 700(Tex.2008) (citing Troxel v. Granville, 530 U.S.57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)(plurality opinion)).

118. Sw. Bell Tel. Co. v. Garza, 164 S.W.3d607, 622 (Tex.2004) (quoting Wiley v. Sprat-lan, 543 S.W.2d 349, 352 (Tex.1976)).

119. In re M.S., 115 S.W.3d 534, 547 (Tex.2003) (quoting Santosky v. Kramer, 455 U.S.745, 758–759, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982)).

120. TEX. CONST. art. XVI, § 59 (‘‘The conserva-tion and development of all of the naturalresources of this State TTT [is] hereby de-clared [a] public right[ ] and dut[y]; and theLegislature shall pass all such laws as may beappropriate thereto.’’).

121. See Charles B. Hochman, The SupremeCourt and the Constitutionality of RetroactiveLegislation, 73 HARV. L.REV. 692, 697 (1960)(‘‘[T]he constitutionality of [a retroactive] stat-ute is determined by three major factors, eachof which must be weighed in any particularcase. These factors are: the nature and


perceived public advantage of a retroactivelaw is not simply to be balanced against itsrelatively small impact on private inter-ests, or the prohibition would be deprivedof most of its force. There must be acompelling public interest to overcome theheavy presumption against retroactivelaws. To be sure, courts must be mindfulthat statutes are not to be set aside lightly.This Court has invalidated statutes as pro-hibitively retroactive in only three cases,all involving extensions of statutes of limi-tations.122 But courts must also be carefulto enforce the constitutional prohibition tosafeguard its objectives.

Under this test, changes in the law thatmerely affect remedies or procedure, orthat otherwise have little impact on priorrights, are usually not unconstitutionallyretroactive. But these consequences ofthe proper application of the prohibitioncannot substitute for the test itself. Theresults in all of our cases applying theconstitutional provision would be the sameunder this test. The cases that consideredonly whether the challenged statute im-paired vested rights implicitly concludedthat any impairment did not upend settledexpectations and was overcome by thepublic interest served by the enactment ofthe statute. And the cases that focused onthe propriety of the Legislature’s exerciseof its police power implicitly concludedthat the exercise was not merely reason-able but was compelling, notwithstandingthe statute’s effect on prior rights.

The test the court of appeals distilledfrom the cases focuses too much on thereasonableness of legislative action anddoes not give full voice to the concernsaddressed by the prohibition against retro-active laws. The court believed that oneconsideration in applying the prohibition iswhether a statute is ‘‘appropriate and rea-sonably necessary to accomplish a purposewithin the scope of the police power’’.123

But the necessity and appropriateness oflegislation are generally not matters thejudiciary is able to assess. In Barshop,for example, we did not undertake to de-termine whether the regulation schemefashioned by the Legislature in the Ed-wards Aquifer Act was the only, the best,or even a good way to conserve and allo-cate groundwater among those claiming aright to it. The important considerationswere that the Act discharged the Legisla-ture’s constitutionally mandated duty toconserve public resources, that some regu-lation was entirely to be expected, and thatthe burden of its retroactive effect in bas-ing future withdrawals on historic use wasshared by all those claiming a right togroundwater.

The second factor in the court of ap-peals’ test was whether a statute is unrea-sonable, arbitrary, unjust, unduly harsh, ordisproportionate to the end sought to beaccomplished.124 But the intent of the pro-hibition against retroactive laws is to fore-close these kinds of considerations to theLegislature in enacting laws and to thejudiciary in reviewing them. A retroactive

strength of the public interest served by thestatute, the extent to which the statute modi-fies or abrogates the asserted preenactmentright, and the nature of the right which thestatute alters.’’); see also Owen Lumber Co. v.Chartrand, 276 Kan. 218, 73 P.3d 753, 755(2003); Peterson v. City of Minneapolis, 285Minn. 282, 173 N.W.2d 353, 357 (1969).

122. Baker Hughes, Inc. v. Keco R. & D., Inc.,12 S.W.3d 1, 5 (Tex.1999); Wilson v. Work,

122 Tex. 545, 62 S.W.2d 490 (Tex.1933) (percuriam) (original proceeding); Mellinger v.City of Houston, 68 Tex. 37, 3 S.W. 249, 254–255 (1887).

123. 251 S.W.3d 520, 532 (Tex.App.-Houston[14th Dist.] 2006).

124. Id.


law is not permissible merely because theend seems to justify the means. The pre-sumption is that a retroactive law is uncon-stitutional without a compelling justifica-tion that does not greatly upset settledexpectations.

Robinson would go further. She arguesthat because the prohibition against retro-active laws is part of the Texas Constitu-tion’s Bill of Rights, it is absolute, and anyweighing of the government’s interest inenacting a retroactive law is precluded byarticle I, section 29 of the Texas Constitu-tion, which states:

To guard against transgressions of thehigh powers herein delegated, we de-clare that everything in this ‘‘Bill ofRights’’ is excepted out of the generalpowers of government, and shall foreverremain inviolate, and all laws contrarythereto, or to the following provisions,shall be void.

But Robinson’s argument begs the ques-tion. We do not disagree that the consti-tutional prohibition is absolute when it ap-plies, as are the right to worship, the rightto free speech, the freedom from unrea-sonable search and seizure, the guarantyof due course of law, and the other protec-tions of the Bill of Rights. But section 29does not determine whether and how theBill of Rights’ provisions apply. WhatJustice Oliver Wendell Holmes observedabout all rights applies to the right to befree from retroactive laws:

All rights tend to declare themselvesabsolute to their logical extreme. Yetall in fact are limited by the neighbor-hood of principles of policy which areother than those on which the particularright is founded, and which becomestrong enough to hold their own when acertain point is reached. The limits set

to property by other public interestspresent themselves as a branch of whatis called the police power of the State.The boundary at which the conflictinginterests balance cannot be determinedby any general formula in advance, butpoints in the line TTT are fixed by deci-sions that this or that concrete case fallson the nearer or farther side.125

IV

Using the standards we have set out, wemust now determine whether chapter 149is unconstitutionally retroactive as appliedto Robinson.

A

[12] We first consider the nature ofthe rights claimed by the Robinsons andChapter 149’s impact on them. Chapter149 does not directly restrict the Robin-sons’ common law action for personal inju-ries due to exposure to asbestos in theworkplace. Rather, it supplants the usualchoice-of-law rules for determining whatstate’s successor liability law should applyin asbestos cases in Texas by mandatingTexas courts to apply Texas law, then forthe first time prescribes limits on thatliability, even if, as here, successor liabilityarose under the law of another state.Crown argues that by allowing for an ex-pansion of liability beyond the tortfeasor toinclude a successor by merger, successorliability is largely remedial in nature, andin any event, is a creature of statute inwhich there can be neither right nor ex-pectation. Crown cites Dickson v. Navar-ro County Levee Improvement District,where we gave immediate effect to a stat-ute that repealed a special, statutory cause

125. Hudson Cnty. Water Co. v. McCarter, 209U.S. 349, 355, 28 S.Ct. 529, 52 L.Ed. 828

(1908).


of action.126 Crown analogizes this case toOwens Corning, which upheld the changein Texas law to allow a plaintiff no moretime to sue here than he would have had inhis state of residence.127

But the successor liability in this case isnot a creature of Texas law; the partiesagree that without Chapter 149, New Yorkor Pennsylvania law would apply, and thatunder the law of those states, Crown’ssuccessor liability is unquestionable. Sothis is not a case like Dickson, in which theLegislature abolished a cause of action ithad itself created; Chapter 149 limits lia-bility created under other states’ laws.Nor is this a case like Owens Corning, inwhich the Legislature changed the statuteof limitations so that a nonresident plain-tiff would gain no advantage by suing inTexas rather than in his home state;Chapter 149 disadvantages Texas resi-dents, as well as nonresidents, who sueCrown in Texas rather than New York orPennsylvania. Nevertheless, Crown has apoint that choice-of-law rules are purelyprocedural and subject to change, often bycourts, but certainly by the Legislature ifit chooses to do so.

However, Chapter 149 extinguishes theRobinsons’ claim and all other such claimsagainst Crown in Texas, and while it doesso indirectly, extinction was the Legisla-ture’s specific intent. An interest in main-taining an established common-law causeof action is greater than an interest inchoice-of-law rules. We have held that anunliquidated personal-injury claim was nota property interest under the commonlaw,128 but it is now assignable as otherproperty interests.129 The rights protect-ed by the constitutional prohibition against

retroactive laws are no more limited tothose recognized at the time the prohibi-tion was adopted than are the rights pro-tected by due course of law. An unliqui-dated claim may have little or no value, asfor example when the cause of action hasnot been recognized or the elements ofrecovery cannot be proved. But here,claims like the Robinsons’ have become amature tort, and recovery is more predict-able, especially when the injury is meso-thelioma, a uniquely asbestos-related dis-ease. Discovery taken in the case showsthat the Robinsons’ claims had a substan-tial basis in fact. Their right to assertthem was real and important, and it wasfirmly vested in the Robinsons.

Crown argues that when Mundet wasstill selling the asbestos insulation to whichJohn Robinson was exposed in ship boilerrooms, the Robinsons could not reasonablyhave expected Mundet to be able to pay allthe claims that would eventually arise, orthat the company would merge with adeeper pocket like Crown. But those arenot the expectations the prohibitionagainst retroactive laws protects. TheRobinsons could well have expected, thenas now, that a rule of law that permittedtheir recovery, and many others’ beforethem, would not be changed after they hadfiled suit to abrogate their claim.

Crown argues that the Robinsons havealleged that all the defendants they havesued are jointly and severally liable andthat they are likely to recover all theirdamages from those who have alreadysettled and the others than remain. Werefuse to speculate about what might hap-pen. If Crown would otherwise be re-sponsible for the Robinsons’ injury, then

126. 135 Tex. 95, 139 S.W.2d 257 (1940).

127. Owens Corning v. Carter, 997 S.W.2d 560,573 (Tex.1999).

128. Graham v. Franco, 488 S.W.2d 390, 395(Tex.1972).

129. TEX. PROP.CODE § 12.014.


by insulating Crown, Chapter 149 eitherreduces the recovery to which the Robin-sons are entitled or requires the other de-fendants to pay Crown’s share. Eitherway, the statute disturbs settled expecta-tions.

We therefore conclude that Chapter 149significantly impacts a substantial interestthe Robinsons have in a well-recognizedcommon-law cause of action.

B

[13] We next consider whether Chap-ter 149 serves the public interest. Crownargues that the statute helps alleviate theasbestos litigation crisis that has alreadybankrupted many companies, resulting inlost jobs and a burden on the State’s econ-omy. The Legislature has recognized theseverity of that crisis in another context,130

but it did not do so in enacting House Bill4 and Chapter 149. On the contrary, thelegislative record is fairly clear that chap-ter 149 was enacted to help only Crownand no one else. Crown itself has beenunable to identify to us any other companyaffected by Chapter 149. There is evi-dence that Crown has about 1,000 employ-ees in Texas and about the same numberof former employees on retirement, andthat it operates three facilities here.Crown asserts that it continues to be suedon asbestos claims in Texas, but the recordis silent concerning the number of those

claims or the amount of Crown’s probableexposure.

The Legislature made no findings tojustify Chapter 149. Even the statementby its principal House sponsor fails toshow how the legislation serves a substan-tial public interest. No doubt Texas willbenefit from reducing the liability of anemployer and investor in the State, but theextent of that benefit is unclear on thisrecord. And in any event, there is nothingto indicate that it rises to the level of thepublic interest involved in Barshop andA.V.

Crown argues that the public interesthas been recognized by other states’ legis-latures in enacting similar legislation. Weare aware of ten other state legislaturesthat have enacted laws similar to chapter149. In one state, Pennsylvania, the legis-lation was fully retroactive,131 just as chap-ter 149 is, but the Supreme Court of Penn-sylvania has held the statute to violate theOpen Courts provision of the PennsylvaniaConstitution.132 Statutes adopted in threestates—Florida, Indiana, and Wisconsin—apply to pending actions if trial has notcommenced.133 Statutes adopted in threeother states—North Dakota, Ohio, andOklahoma—have the same application un-less it is found to be unconstitutional.134

South Carolina’s statute applies only toactions filed after the statute’s effectivedate,135 and Georgia’s applies only to ac-tions that accrue after the statute’s effec-tive date.136 The effect of Mississippi’s

130. Act of May 16, 2005, 79th Leg., R.S., ch.97, § 1, 2005 Tex. Gen. Laws 169 (finding an‘‘asbestos litigation crisis’’ in Texas andthroughout the country).

131. 15 PA. CONS.STAT. ANN. § 1929.1 (West2010).

132. Ieropoli v. AC&S Corp., 577 Pa. 138, 842A.2d 919 (2004).

133. FLA. STAT. ANN. §§ 774.001–.008 (West2010); IND.CODE ANN. §§ 34–31–8–1 to –12

(West 2010); WIS. STAT. ANN. § 895.61 (West2010).

134. N.D. CENT.CODE § 32–46–06 (2010); OHIO

REV.CODE ANN. § 2307.97 (West 2010); OKLA.

STAT. ANN. tit. 76, §§ 72–79 (West 2010).

135. S.C.CODE ANN. § 15–81–110 to –160(2010).

136. O.C.G.A. § 51–15–1 to –8 (2010) (see§ 51–15–3, Chapter Note, Editor’s Notes, oneffective date and non-codified provisions);


statute on accrued or pending claims isunclear from the text.137 Other states’perception of the public interest served byretroactive legislation is at best ambigu-ous.

It is tempting to think that the realburden of Chapter 149 on the Robinsonsand other plaintiffs in their shoes will belight compared to the benefit to Crown, itscurrent and former employees, and theState. The Robinsons’ case, and most oth-ers like it, involves many defendants andlarge settlements funded from many pock-ets. The impact of Chapter 149 on individ-ual cases may be slight, relative to thecumulative impact on Crown withoutChapter 149. But we think that an impor-tant reason for the constitutional prohibi-tion against retroactive laws is to preemptthis weighing of interests absent compel-ling reasons. Indeed, it is precisely be-cause retroactive rectification of perceivedinjustice seems so reasonable and evennecessary, especially when there are fewto complain, that the constitution prohibitsit.

Accepting the legislative record as indi-cating the reasons for its actions, we con-clude that the public interest served byChapter 149 is slight.

* * *

For these reasons, we hold that Chapter149, as applied to the Robinsons’ common-law claims, violated article I, section 16 ofthe Texas Constitution. The court of ap-peals’ judgment is reversed and the case isremanded to the trial court for furtherproceedings.

Justice MEDINA filed a concurringopinion.

Justice WILLETT filed a concurringopinion, in which Justice LEHRMANNjoined.

Justice WAINWRIGHT filed adissenting opinion, in which JusticeJOHNSON joined.

Justice GUZMAN did not participate inthe decision.

Justice MEDINA filed a concurringopinion.

I join the Court’s opinion because Iagree that a retroactive law is presump-tively ‘‘unconstitutional without a compel-ling justification that does not greatly up-set settled expectations’’ and that no suchjustification exists here. 335 S.W.3d 126,147. I further agree that the ‘‘constitu-tional prohibition against retroactive lawsdoes not insulate every vested right fromimpairment, nor does it give way to everyreasonable exercise of the Legislature’spolice power[.]’’ Id. at 145. And finally, Iagree that Chapter 149 here violates arti-cle I, section 16 of the Texas Constitutionbecause it operates to retroactively abolishthe Robinsons’ vested property rights, orin the words of the Court—‘‘significantlyimpacts a substantial interest the Robin-sons have in a well-recognized common-lawcause of action.’’ 335 S.W.3d at 149. Iwrite separately because I do not sharethe Court’s disdain for traditional vestedrights analysis nor the dissent’s view ofthat analysis.

I

I begin, as the Court does, with the twingoals served by the Retroactivity Clause:(1) it protects individuals against legisla-tive enactments that unfairly deprive themof legitimate expectations, Owens Corning

Ga. L.2007, p. 4, §§ 2, 4 (text of SB 182, aspassed, is available at http://www.legis.state.ga.us/legis/2007 08/fulltext/sb182.htm).

137. MISS.CODE ANN. § 79–33–1 to –11 (2010).


v. Carter, 997 S.W.2d 560, 572 (Tex.1999),and (2) it ensures that legislative enact-ments do not single out individuals forpreferential or arbitrary treatment. SeeIn re A.V., 113 S.W.3d 355, 361 (Tex.2003)(upholding law against retroactivity chal-lenge because ‘‘the State [was] not pursu-ing a retributive or punitive aim’’); seealso Landgraf v. USI Film Prods., 511U.S. 244, 284–85 & n. 20, 114 S.Ct. 1483,128 L.Ed.2d 229 (1994). As the UnitedStates Supreme Court has observed, retro-active lawmaking creates special opportu-nities for rewarding favored constituenciesat the expense of disfavored ones. Land-graf, 511 U.S. at 266–67, 114 S.Ct. 1483.

When determining whether a statute vi-olates the Retroactivity Clause, vestedrights analysis poses three related ques-tions. First, does the claimant have avested right affected by the statute? Sec-ond, does the retroactive statute impairthat vested right? And finally, does acompelling public interest justify impair-ment through the state’s police power?See In re A.V., 113 S.W.3d at 361; Bar-shop v. Medina Cnty. Underground WaterConserv. Dist., 925 S.W.2d 618, 633–34(Tex.1996).

Concluding that vested rights analysiswas ‘‘difficult’’ and ‘‘inconsistent,’’ the courtof appeals declined to address whether theRobinsons had a vested right in their ac-crued tort claim or whether Chapter 149intruded upon that right. 251 S.W.3d 520,526. The court concluded instead that,regardless of whether Chapter 149 impli-cated vested rights, the law could be up-held as a reasonable exercise of the policepower. Id. at 534 (citing Barshop, 925S.W.2d at 633–34). Taking much the sametack, the Court begins with the last ques-tion but correctly rejects the court of ap-peals’ rational basis analysis as the appro-priate constitutional standard. Along theway, the Court grapples with the nature of

the underlying property interest and itsimpairment, ultimately concluding that theRobinsons possessed a substantial interestin a well-founded claim (dare I say a vest-ed property right) that Chapter 149 retro-actively impaired. Although the Court isreluctant to use the term ‘‘vested rights,’’preferring instead to speak of ‘‘settled ex-pectations,’’ I believe we are talking aboutthe same thing.

II

Whether a right may be regarded asvested depends on considerations of ‘‘fairnotice,’’ ‘‘reasonable reliance,’’ and ‘‘settledexpectations.’’ Owens Corning, 997S.W.2d at 572–73; see also McCain v.Yost, 155 Tex. 174, 284 S.W.2d 898, 900(1955). Because the parties agree thatRobinson’s claim has accrued, see Puste-jovsky v. Rapid–Am. Corp., 35 S.W.3d 643,653 (Tex.2000), the first question is wheth-er or not that accrued tort claim is avested right. I conclude that it is.

While we have never invalidated a stat-ute on the grounds that it retroactivelyabrogated an accrued cause of action, wehave noted on several occasions that ac-crued causes of action enjoy constitutionalprotection under article I, section 16. Tobe sure, no one has a vested right in a‘‘mere expectation TTT based upon an an-ticipated continuance of the present gener-al laws.’’ Ex parte Abell, 613 S.W.2d 255,261 (Tex.1981). At the same time, theRetroactivity Clause

must be held to protect every right,even though not strictly a right of prop-erty, which may accrue under existinglaws prior to the passage of any actwhich, if permitted a retroactive effect,would take away the right. A right hasbeen well defined to be a well foundedclaim and a well founded claim meansnothing more nor less than a claim rec-ognized or secured by lawTTTT [A]


right, in a legal sense, exists when inconsequence of given facts the law de-clares that one person is entitled to en-force against another a claim, or to re-sist the enforcement of a claim urged byanother.

Mellinger v. City of Houston, 68 Tex. 37, 3S.W. 249, 253 (1887); see also OwensCorning, 997 S.W.2d at 572–73 (observingthat ‘‘[c]onsiderations of fair notice, rea-sonable reliance, and settled expectationsplay a prominent role’’ when determiningrights entitled to constitutional protection);Middleton v. Tex. Power & Light Co., 108Tex. 96, 185 S.W. 556, 560 (1916) (observ-ing that a vested common law right ofaction is a property right that the legisla-tion at issue did not affect).

We have also held that the Legislaturemay affect remedies for accrued causes ofaction, so long as the remedy is not entire-ly taken away. See, e.g., City of Tyler v.Likes, 962 S.W.2d 489, 502–03 (Tex.1997);Phil H. Pierce Co. v. Watkins, 114 Tex.153, 263 S.W. 905, 907 (1924) (orig. pro-ceeding); see also DeCordova v. City ofGalveston, 4 Tex. 470, 477–78 (1849) (ex-plaining the remedial exception and en-dorsing a New Hampshire decision afford-ing protection to accrued causes of action).If Texas law afforded no constitutionalprotection to accrued causes of action,there would be no need to permit theLegislature to modify attendant remedies,nor any need to bar the Legislature fromstripping a plaintiff of all remedy.

Not all courts agree with this analysis,however. Several federal courts suggestthat a plaintiff has no vested right in anaccrued tort claim until the claim is pur-sued to final judgment.1 The majority ofjurisdictions, however, appear to affordconstitutional protection to accrued tortclaims without a final-judgment require-ment.

For example, the Kansas SupremeCourt has rejected the notion that a prop-erty right in an accrued tort claim shouldnot vest before final judgment. Resolu-tion Trust Corp. v. Fleischer, 257 Kan.360, 892 P.2d 497, 500–06 (1995). Thecourt noted some disagreement about vest-ed rights, particularly in the federalcourts, but suggested that ‘‘the apparentconflicting holdings [were] not as divergentas they initially appear[ed].’’ Id. at 503.Instead, the court observed that the out-come in decisions espousing a final-judg-ment requirement could generally be ex-plained by other factors, such as: ‘‘(1) thenature of the rights at stake (e.g., proce-dural, substantive, remedial), (2) how therights were affected (e.g., were the rightspartially or completely abolished by thelegislation; was any substitute remedyprovided), and (3) the nature and strengthof the public interest furthered by thelegislation.’’ Id. The court then notedthat most of the federal cases favoring afinal-judgment requirement involved issuesof federal preemption and the substitutionof a federal remedy for the common lawclaim, while others involved either the clar-

1. Compare Hammond v. United States, 786F.2d 8, 12 (1st Cir.1986) (holding that a plain-tiff has no vested right in a tort claim until theclaim is pursued to final judgment); In reTMI, 89 F.3d 1106, 1113 (3d Cir.1996); Zeranv. Am. Online, Inc., 129 F.3d 327, 335 (4thCir.1997); Lunsford v. Price, 885 F.2d 236,240–41 (5th Cir.1989); Symens v. SmithKlineBeecham Corp., 152 F.3d 1050, 1056 n. 3 (8thCir.1998); Grimesy v. Huff, 876 F.2d 738, 744(9th Cir.1989); Salmon v. Schwarz, 948 F.2d

1131, 1143 (10th Cir.1991); Sowell v. Am.Cyanamid Co., 888 F.2d 802, 805 (11th Cir.1989), with Davis v. Blige, 505 F.3d 90, 103(2d Cir.2007) (holding that a plaintiff has avested right in an accrued patent infringe-ment claim); Garcia v. Wyeth–Ayerst Labs.,385 F.3d 961, 968 (6th Cir.2004); Hoyt MetalCo. v. Atwood, 289 F. 453, 454–55 (7th Cir.1923); de Rodulfa v. United States, 461 F.2d1240, 1257 (D.C.Cir.1972).


ification of defects in an existing ambigu-ous statute or retroactive legislation aimedat urgent problems of great public inter-est. See Id. (citing cases). In short, thecases generally turned on factors otherthan the existence of a final judgment.

The United States Supreme Court hashesitated to apply the due process clausein this area. See, e.g., Daniels v.Williams, 474 U.S. 327, 332, 106 S.Ct. 662,88 L.Ed.2d 662 (1986) (rejecting reasoningthat would superimpose the FourteenthAmendment as a ‘‘font of tort law’’); Paulv. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155,47 L.Ed.2d 405 (1976) (same); but seeLogan v. Zimmerman Brush Co., 455 U.S.422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265(1982) (considering it ‘‘settled’’ that ‘‘acause of action is a species of property’’).Notions of comity and federalism may ex-plain this hesitancy in part, particularlywhen state enactments are under review.David Richards & Chris Riley, Symposi-um on the Texas Constitution: a CoherentDue–Course–of–Law Doctrine, 68 TEX.

L.REV. 1649, 1666 (1990). But these con-siderations do not similarly encumber statecourts. Moreover, our state Constitution,unlike its federal counterpart, includes anindependent anti-retroactivity provision,and Texas’s Retroactivity Clause goes be-yond federal guarantees of property anddue process. Ex parte Abell, 613 S.W.2dat 260. As we explained in Mellinger:

It can not be presumed that in adoptinga Constitution which contained a decla-ration ‘‘that no retroactive law shall bemade,’’ that it was intended to protectthereby only such rights as were pro-tected by other declarations of the Con-

stitution which forbade the making of expost facto laws, laws impairing the obli-gation of contracts, or laws which woulddeprive a citizen of life, liberty, proper-ty, privileges or immunities, otherwisethan by due course of the law of thelandTTTT

3 S.W. at 252; see also Richards & Riley,68 TEX. L.REV. at 1650 (noting that draftersof our 1836 Constitution held ‘‘a distinctlyJacksonian’’ concept of democracy and a‘‘wariness of governmental authority’’).And finally, every state whose constitutionincludes an independent anti-retroactivityprovision concludes that accrued causes ofaction are vested rights.2

Though a plaintiff’s ultimate right torecover is contingent upon success at trial,a plaintiff may nonetheless have a ‘‘settledexpectation’’ that, once wronged, he or shewill be able to pursue a claim against hiswrongdoer under the substantive laws asthey existed at the time his or her cause ofaction accrued. Mellinger, 3 S.W. at 253;see also Likes, 962 S.W.2d at 502 (indicat-ing that retrospective law that entirelyeliminates pending cause of action wouldbe ‘‘unconstitutionally retroactive’’). Aplaintiff thus has a property interest in anaccrued cause of action which the TexasConstitution protects like other property.Subaru of Am. v. David McDavid Nissan,Inc., 84 S.W.3d 212, 219 (Tex.2002).

III

The dissent, however, prefers the minor-ity view that a property interest in anaccrued cause of action not vest beforefinal judgment is rendered. According to

2. See DeCordova, 4 Tex. at 476–77 (looking tothe decisions of other states whose constitu-tions contain anti-retroactivity provisions);see also Denver, S.P. & P.R. Co. v. Woodward,4 Colo. 162, 164–65 (Colo.1878); SynalloyCorp. v. Newton, 254 Ga. 174, 326 S.E.2d 470,472 (1985); Bryant v. City of Blackfoot, 137

Idaho 307, 48 P.3d 636, 642 (2002); Hess v.Chase Manhattan Bank, 220 S.W.3d 758, 769–72 (Mo.2007); Shea v. North–Butte MiningCo., 55 Mont. 522, 179 P. 499, 503 (1919);Groch v. Gen. Motors Corp., 117 Ohio St.3d192, 883 N.E.2d 377, 408 (2008); Mills v.Wong, 155 S.W.3d 916, 921 (Tenn.2005).


the dissent, no reasonable litigant has a‘‘ ‘settled expectation’ of achieving mone-tary recovery’’ before judgment. 335S.W.3d 126, 174 (Wainwright, J. dissent-ing). And as to this case, the dissentsubmits that the ‘‘Robinsons’ expectationin the continued state of law [was] low’’because of ‘‘numerous contingencies’’ andtheir failure to take ‘‘any action in relianceon the law at the time.’’ 335 S.W.3d 126,183, 179 (Wainwright, J. dissenting). Inthe dissent’s view, the Robinsons’ pendingtort claims were nothing more than a val-ueless contingent interest in an uncertainfuture judgment. I disagree for severalreasons.

First, I reject the notion that an accruedcause of action has no value apart from ajudgment and is not itself a protectedproperty interest. An accrued cause ofaction is clearly property under Texas law.See TEX. PROP.CODE § 12.014. It has value,even if that value is not always easy tomeasure. Ownership and control is vestedin the holder of the claim, and those inter-ests can generally be sold or assigned.Int’l Proteins Corp. v. Ralston–PurinaCo., 744 S.W.2d 932, 934 (Tex.1988); seePPG Indus., Inc. v. JMB/Houston Ctrs.Partners Ltd. P’ship, 146 S.W.3d 79, 106(Tex.2004) (tracing development of modernlaw allowing transfer of choses in action);State Farm Fire & Cas. Co. v. Gandy, 925S.W.2d 696, 707 (Tex.1996) (noting that‘‘[p]racticalities of the modern world havemade free alienation of choses in action thegeneral rule’’).

Further, an accrued cause of action is‘‘constitutional’’ property, a vested proper-ty right, because the holder has a legiti-mate expectation that the claim will berecognized by state law. See Jack M.Beermann, Government Official Torts andthe Takings Clause: Federalism and StateSovereign Immunity, 68 B.U.L.REV. 277,302 (1988); see also Logan, 455 U.S. at

428, 102 S.Ct. 1148 (considering it ‘‘settled’’that ‘‘a cause of action is a species ofproperty’’). The dissent’s preoccupationwith final judgments is misguided becausethe relevant expectations here involve thecause of action, not some future judgment.It is the right to sue itself—the lawsuit—that is being taken away, not the finaloutcome.

Once a lawsuit is filed, subsequent actionby the sovereign interferes not with possi-ble or potential rights that might accrue inthe future, but with existing expectationsand rights that have accrued—that have‘‘vested’’—and that constitute a presentproperty interest. As one legal scholarexplains: ‘‘a cause of action might bethought of as an entitlement to employ thestate’s adjudicatory machinery which canonly be denied for cause, cause being thefailure to establish the elements of thecause of action or to comply with reason-able procedural requirements.’’ Beer-mann, 68 B.U.L.REV. at 305 n.121 (citingLogan, 455 U.S. 422, 102 S.Ct. 1148). Oth-er authorities share the same view:

Determining whether vested rights existimplicates whether the property ownerhas a ‘‘legitimate claim of entitlement.’’TTT Clearly, the plaintiff has no ‘‘entitle-ment’’ to the damages sought, or to anyform of successful resolution of the law-suit, as he might lose on the merits orbecause of procedural aspects of thecase. But just as clearly, the plaintiff’sinterest in the lawsuit itself should quali-fy as an ‘‘entitlement that may be termi-nated only for cause’’ that should war-rant constitutional protection.

Jeremy A. Blumenthal, Legal Claims asPrivate Property: Implications for Emi-nent Domain, 36 HASTINGS CONST. L.Q.373, 401 (Spring 2009) (footnotes omitted);see also Resolution Trust Corp., 892 P.2dat 502 (holding accrued tort claim to bevested property right and rejecting similar


final-judgment argument because it ‘‘failsto recognize the distinction between aright of action and a right of recovery’’).

Finally, even if some manner of affirma-tive act is, as the dissent suggests, a neces-sary part of the ‘‘settled expectations’’ test,it is clearly established here. Contrary tothe dissent’s characterization, the Robin-sons were not idle while Crown Cork la-bored to undo their accrued claim. TheRobinsons filed suit, litigated their claimfor several months, and obtained a partialsummary judgment. Only after that didthe Legislature enact Chapter 149, takingaway the Robinsons’ summary judgmentand their underlying cause of action. Al-though the Robinsons had not yet obtaineda final judgment (and thus had no vestedproperty right in that non-existent judg-ment), they did possess a vested propertyright in their pending cause of action thatincluded the right to prosecute the claim.See Washington–Southern Navigation Co.v. Baltimore & Philadelphia S.B. Co., 263U.S. 629, 635, 44 S.Ct. 220, 68 L.Ed. 480(1924) (‘‘The right of a citizen of the Unit-ed States to sue in a court having jurisdic-tion of the parties and of the cause ofaction includes the right to prosecute hisclaim to judgment.’’).

Although I emphatically disagree withthe dissent’s view that an accrued cause ofaction is too indefinite, and its owner’sexpectations too insignificant, to warrantconstitutional protection, I readily concedethat ‘‘no one has a vested right TTT or aproperty right, in a mere rule of law.’’ 335S.W.3d at 171 (Wainwright, J. dissenting)(quoting Middleton, 185 S.W. at 560). Thecontinuation of a rule of law in the ab-stract, however, is very different from thepreservation of a claim that has alreadyaccrued under that law. Although a ‘‘per-son has no property, no vested interest, inany rule of the common law,’’ nevertheless,‘‘[r]ights of property which have been cre-

ated by the common law cannot be takenaway without due process.’’ Munn v. Illi-nois, 94 U.S. 113, 134, 24 L.Ed. 77 (1877).

The distinction is the difference betweenthe prospective or retroactive applicationof a law. Prospective laws that diminishor eliminate future causes of action (ordefenses) do not ordinarily implicate vest-ed property rights. However, where ‘‘alaw changes the legal consequences of pastactions, it interferes with vested rights,and courts have found that property TTT isimplicated.’’ Olivia A. Radin, Rights asProperty, 104 COLUM. L.REV. 1315, 1331(2004). A cause of action vests upon theoccurrence of an injury, and that ‘‘vestedright of action is property in the samesense in which tangible things are proper-ty, and is equally protected against arbi-trary interference.’’ Pritchard v. Norton,106 U.S. 124, 132, 1 S.Ct. 102, 27 L.Ed. 104(1882).

Our opinion in Ex parte Abell, which thedissent quotes at length, is to the sameeffect. 335 S.W.3d at 171 (Wainwright, J.dissenting) (quoting Ex parte Abell, 613S.W.2d at 261). Abell restates the rulefrom Mellinger that the Legislature candeclare prospectively that the state of factsthat once created a claim, no longer will;but once ‘‘the state of facts which the lawdeclares shall give a right comes into exis-tence,’’ the right is ‘‘fixed’’ or ‘‘vested,’’ andthe Legislature cannot retroactively undowhat has already accrued. Abell, 613S.W.2d at 261 (quoting Mellinger, 3 S.W.at 253).

The dissent accepts the rule, but only toa point. It acknowledges that a defense ofrepose vests upon accrual and cannotthereafter be rescinded by the Legislature:

TTT the Legislature cannot resurrectcauses of action that have already beenextinguished by retroactively lengthen-ing the statute of limitations. E.g. Bak-er Hughes, Inc. v. Keco R. & D., Inc., 12


S.W.3d 1, 4 & n. 12 (Tex.1999); Wilsonv. Work, 122 Tex. 545, 62 S.W.2d 490,490–91 (1933) (per curiam)TTTT In oth-er words, when the statute extinguisheda cause of action, a defendant received avested right of repose barring the extin-guished claim.

335 S.W.3d at 177 (Wainwright, J. dissent-ing). But the dissent refuses to extendsimilar protection to an accrued claim. Isee no basis for limiting the RetroactivityClause to defensive claims. See 1 GEORGE

D. BRADEN, ET AL., THE CONSTITUTION OF THE

STATE OF TEXAS: AN ANNOTATED AND COMPAR-

ATIVE ANALYSIS 58 (1977) (observing thatthe ‘‘prohibition concerning ‘retroactivelaws’ seems to spring from a general suspi-cion regarding all retroactive laws’’).

Rights acquired under existing law,whether defensive or offensive, are treatedsimilarly under the Texas Constitution.Thus, once a statute of limitations has runor a cause of action has accrued, retroac-tive legislation that either revives an extin-guished claim, or bars an existing one,affects a vested property right. The Ret-roactivity Clause applies in either instance.See Mellinger, 3 S.W. at 253 (observingthat Retroactivity Clause applies both tovested claims and defenses). I wouldtherefore conclude that the Robinsons’ ac-crued claims are vested rights to which theprotection of article I, section 16 may ap-ply.

IV

Crown Cork argues, however, that evenif a plaintiff has a vested right in an ac-crued tort claim, Chapter 149 does notintrude upon the Robinsons’ vested rightsfor several reasons. First, Crown Corkargues that Chapter 149 does not infringeon this right because the statute merelyworks a change to procedure or remedy.It is well established that a party has no

vested right in a remedy or rule of proce-dure. Subaru, 84 S.W.3d at 219. Thelines that divide substance from procedureor remedy, however, are notoriously diffi-cult to draw. Tex. Water Rights Comm’nv. Wright, 464 S.W.2d 642, 648–49 (Tex.1971). But we need not parse these ‘‘su-perfine’’ distinctions here, Langever v.Miller, 124 Tex. 80, 76 S.W.2d 1025, 1029(1934), because, whether regarded as re-medial or substantive, Chapter 149 entire-ly eliminates the Robinsons’ remedy forMundet’s torts. See Likes, 962 S.W.2d at502–03; Phil H. Pierce Co., 263 S.W. at907; DeCordova, 4 Tex. at 479–80.Though it is conceivable that Robinsonmay establish that one of the other defen-dants in the original action is jointly andseverally liable for all of her damages,Robinson has a separate cause of actionagainst each of these defendants thatmight properly be tried and determined asif it were the only claim in controversy.See Morgan v. Compugraphic Corp., 675S.W.2d 729, 733–34 (Tex.1984). Chapter149 extinguishes this separate action in itsentirety, releasing Crown Cork from itsobligation assumed under the mergeragreement to pay for Mundet’s torts. SeeSam Bassett Lumber Co. v. City of Hous-ton, 145 Tex. 492, 198 S.W.2d 879, 882(1947) (distinguishing permissible changesto statutes of limitations from enactmentsreleasing or extinguishing a debt).

Crown Cork also argues that Chapter149 does not intrude on the Robinsons’vested rights because it affects vicariousliability. In Aetna Ins. Co. v. Richardelle,528 S.W.2d 280 (Tex.Civ.App.-CorpusChristi 1975, writ ref’d n.r.e.), the court ofappeals upheld a law retroactively repeal-ing the statutory vicarious liability of someparents for the torts of their minor chil-dren. Though Aetna described vicariousliability as ‘‘remedial,’’ it did not hold thatthe Legislature might alter vicarious liabil-ities at will without running afoul of the


Retroactivity or Contract Clauses. Aetnamerely held that statutory causes of actiondo not generally give rise to vested rights.Id. at 285 (citing Dickson v. NavarroLevee Imp. Dist., 135 Tex. 95, 139 S.W.2d257, 259 (1940)). Unlike the parents’ vi-carious liability for the torts of their chil-dren, successor liability is not purely statu-tory. Successor liability, at least when itattends a formal merger, instead arisesfrom the contractual merger agreementand from the plaintiff’s underlying tort orcontract claim, and was recognized at com-mon law. See Tex. & P.R. Co. v. Murphy,46 Tex. 356, 360 (1876); Stephenson v.Tex. & P.R. Co., 42 Tex. 162, 167–68(1874); Turner v. Bituminous Cas. Co.,397 Mich. 406, 244 N.W.2d 873, 877–78(1976) (‘‘Most of [the rules of successorliability] may fairly be said to have arisenfrom case law’’). Though successor liabili-ty is now governed by statute, the corpora-tions law is a shield to common law liabili-ty, not a legislatively created right withinthe meaning of Dickson.

Crown Cork next argues that Chapter149 does not intrude on the Robinsons’vested rights because it is akin to a bor-rowing statute or choice of law rule man-dating that Texas, rather than Pennsylva-nia or New York, law apply to determinecorporate successor liability in asbestoscases. In Owens Corning, we held that aplaintiff had no vested right in a borrowingstatute that permitted out-of-state plain-tiffs to file stale out-of-state claims in Tex-as courts under Texas’ more permissivestatute of limitations. 997 S.W.2d at 571–73. But Chapter 149 represents not only achoice of law rule but also a change toTexas’ substantive law of successor liabili-ty. Cf. id. at 573. Before the passage ofChapter 149, no matter which state’s lawapplied, Crown Cork would have faced lia-bility for Mundet’s torts. TEX. BUS. ORG.

CODE § 10.008(a)(3)-(4); TEX BUS. CORP. ACT

§ 5.06(3); N.Y. BUS. CORP. LAW § 906; 15

PA. CONS.STAT. § 1929. Indeed, Pennsylva-nia has already invalidated a statute pro-viding protections virtually identical tothose found in Chapter 149. See Ieropoliv. AC&S Corp., 577 Pa. 138, 842 A.2d 919,921 (2004).

Finally, Crown Cork cites Owens Corn-ing to argue that Chapter 149 does notinterfere with vested rights because Rob-inson had no legitimate expectation thatMundet would merge with a much largercorporation and because it is not inequita-ble to relieve Crown Cork of wholly unex-pected and innocently acquired asbestosliabilities. 997 S.W.2d at 572–73. In ap-proving the borrowing statute at issue inOwens Corning, we noted that it was notinequitable to require a plaintiff bringingan out-of-state claim to satisfy the statuteof limitations provided by the law supply-ing the cause of action: ‘‘a plaintiff shouldnot be able to gain greater rights than hewould have in the state where the causeof action arose and where he lives simplyby bringing suit in Texas.’’ Id. at 573.But Chapter 149 goes much further and‘‘creates an immunity where none existedbefore.’’ Id. To be sure, Crown Corkprobably did not expect the merger withMundet to entail such extensive liability,and Robinson could hardly have a settledexpectation that Mundet would be ac-quired by a much larger corporation. Butit is not inequitable to require CrownCork to pay for Mundet’s torts becausewhen two corporations formally merge,the law regards them as one. Thoughthis rule may permit plaintiffs to recoverwhere they otherwise would not, ‘‘[i]n sub-stance, if not in form, the post-transferentity distributed the defective productsand should be held responsible for them.’’RESTATEMENT (THIRD) OF TORTS: PRODUCTS

LIABILITY § 12 & cmt. b.

Thus, I conclude that the Robinsons’accrued tort claim here is a vested right


that Chapter 149 has retroactively abro-gated. But this is not the end of theanalysis. As the Court observes, ‘‘the con-stitutional prohibition against retroactivelaws does not insulate every vested rightfrom impairment’’ and a compelling publicinterest may justify impairment, although‘‘the heavy presumption against retroac-tive laws’’ makes instances of this quiterare. 335 S.W.3d at 146.

In fact, we have only twice recognizedlegislative interests of sufficient import tooverride vested private rights: Barshop,925 S.W.2d 618, and In re A.V., 113 S.W.3d355. At issue in Barshop was a statuteregulating water use in the Edwards Aqui-fer basin. Before the enactment of thelaw, property owners were permitted, un-der the rule of capture, to extract as muchwater as they desired from the aquifer.Concerned that the rule of capture dis-couraged water conservation, the Legisla-ture authorized local water districts to reg-ulate water use through a permittingscheme that allocated use permits on thebasis of historical use. Without conduct-ing a vested rights analysis, we held thatthe Legislature’s interest in water conser-vation trumped whatever interest landown-ers had in the continued existence of therule of capture because ‘‘[c]onservation ofwater has always been a paramount con-cern in Texas, especially in times, liketoday, of devastating drought.’’ Barshop,925 S.W.2d at 626.

In In re A.V., 113 S.W.3d 355, we heldthat the Legislature could permissibly en-act a statute terminating parental rightson the basis of a parent’s future imprison-ment for prior criminal convictions.Though we found that the provision didnot intrude upon vested rights, we ex-plained that, even if it had, the Legisla-ture’s interest in protecting ‘‘the safetyand welfare of its children’’ trumped anyindividual interest in retaining parental

rights while unable to care for the child.Id. at 361.

In contrast to the public interest at issuein those cases, the interest protected hereis essentially a private economic one. Asthe Court observes, ‘‘the legislative recordis fairly clear that chapter 149 was enactedto help only Crown and no one else.’’ 335S.W.3d at 149. The Legislature certainlyhas a valid interest in protecting CrownCork’s shareholders and pensioners, and inpromoting business in the state. The Leg-islature also has a legitimate interest inprotecting defendants from excessive lia-bility. But the Legislature’s interest inprotecting the financial wellbeing of a fa-vored defendant is not on par with thepublic interest in the avoidance of cata-strophic drought or the protection of childwelfare. Cf. Barshop, 925 S.W.2d at 626;In re A.V., 113 S.W.3d at 361. Privateeconomic interests will generally not justi-fy intrusions into the vested private rightsof others. See, e.g., Travelers’ Ins. Co. v.Marshall, 124 Tex. 45, 76 S.W.2d 1007,1011–12 (1934) (holding that the interestsof homeowners during the Great Depres-sion did not justify interference with pri-vate mortgage contract rights); Lucas v.United States, 757 S.W.2d 687, 701 (Tex.1988) (holding that it was ‘‘simply unfairand unreasonable to impose the burden ofsupporting the medical care industry solelyupon those persons who are most severelyinjured and therefore most in need of com-pensation.’’). Moreover, the Legislature’sinterest in protecting ‘‘innocent’’ defen-dants does not justify its assumption hereof the judiciary’s role of adjusting privateobligations incurred under existing law.See Landgraf, 511 U.S. at 267 n. 20, 114S.Ct. 1483 (quoting Richmond v. J.A. Cro-son Co., 488 U.S. 469, 513–14, 109 S.Ct.706, 102 L.Ed.2d 854 (1989) (Stevens, J.,concurring in part and concurring in thejudgment)). As with the takings clause,one of the purposes of the prohibition on


retroactive lawmaking is to ensure that theburdens of governance do not fall unfairlyon a small number of citizens. See id.(citing THE FEDERALIST No. 44 (JamesMadison)). The legislative interest assert-ed here is simply insufficient to justify anintrusion into the Robinsons’ vested rights,and thus I agree with the Court that theinnocent successor provisions of Chapter149 cannot be justified as a valid exerciseof the police power and is, as applied here,prohibited under the Retroactivity Clause.TEX. CONST. art. I, § 16.

Justice WILLETT, joined by JusticeLEHRMANN, concurring.

Litigants in our adversarial system arehard-wired for certitude, adept at insistingthe law ‘‘clearly’’ or ‘‘plainly’’ favors theirside or, as here, labeling the controllinganalysis ‘‘straightforward and simple.’’ Ifonly. Today’s case is both complex andconsequential, and fiendishly so. The factsare compelling; the law is unclear; andthe stakes are high, not just for theseparties but also for our constitutional ar-chitecture that both confers and constrainsgovernmental power. I concur that chap-ter 149 is an invalid exercise of legislativepolice power that cannot surmount ourConstitution’s ban on retroactive laws.But I write separately to stress that thiscase, at heart, implicates issues far beyondwhether Barbara Robinson can sue CrownCork & Seal.

Every case that reaches this Court con-cerns real people buffeted by real prob-lems in the real world. This dispute, how-ever, possesses a transcendent quality,touching not only these parties but alsobuilding-block constitutional principles thatbelong to all Texans. In that sense, itaffords a whetstone on which to sharpen

our thinking on some bedrock notions ofgovernment and how the Texas Constitu-tion assigns democratic responsibilities.More to the point, it teaches a vital lessonabout diminished liberty stemming fromgovernment overreaching: The Legisla-ture’s police power cannot go unpoliced.

The Texas Constitution looks unkindlyon retroactive laws, but as a consti-tutional matter, retroactive is notalways retrograde.

While it is axiomatic that the Legisla-ture, through budgeting and lawmaking,has primacy in setting State policy, thatpower, though unrivaled, is not unlimited.One constraint is the Texas Constitution’sBill of Rights, including article I, section16’s prohibition against retroactive laws.1

Retroactive legislation is disfavored be-cause, as the Father of the U.S. Constitu-tion explains, citizens deserve protectionfrom the ‘‘fluctuating policy’’ of the legisla-ture.2 Robinson’s position takes JamesMadison one leap further: Disfavored ac-tually means disallowed, and ‘‘the policepower may not be used to deprive citizensof their property retroactively by eliminat-ing their vested rights in accrued claims.’’Robinson insists our Bill of Rights, includ-ing the Retroactivity Clause, is impregna-ble in this regard given this mandate fromarticle I, section 29:

To guard against transgressions of thehigh powers herein delegated, we de-clare that everything in this ‘‘Bill ofRights’’ is excepted out of the generalpowers of government TTT and all lawscontrary thereto TTT shall be void.3

This admonition naturally commands ju-dicial respect, but it cannot bear theweight Robinson places on it. We long

1. Tex. Const. art. I, § 16.

2. THE FEDERALIST No. 44 (James Madison).

3. Tex. Const. art. I, § 29.


ago crossed the Rubicon of declaring theRetroactivity Clause non-absolute (despitearticle I, section 29’s seeming absolutism),recognizing that some retroactive laws‘‘may be proper or necessary, as the casemay be.’’ 4 Specifically—and this is onefacet of retroactive-law analysis where acontrolling principle (if not its application)is uncomplicated—such laws are constitu-tionally permissible if they are a ‘‘validexercise of the police power by the Legis-lature to safeguard the public safety andwelfare.’’ 5 Retroactivity in and of itself isnot fatal,6 and nothing in the Bill of Rightshandcuffs the Legislature from confrontingurgent state priorities.

The notion that article I, section 29 her-metically seals off the Bill of Rights fromall legislative attention invites myriad ab-surdities.7 The ‘‘all laws contrary TTT

shall be void’’ language may be faciallyinviolable, similar to the federal Bill ofRights’ ‘‘Congress shall make no law’’ lan-

guage, but it must accommodate legislationat the edges. The practical challenge forjudges is to set that perimeter, and to doso in a principled, no-favorites fashion.

House Bill 4 was enacted against abackdrop of urgency, but with legis-lative police power, unfettered mustnever be unfretted.

As litigants often discover, in the Legis-lature a deal is sometimes a raw deal. Butunfair does not always equal unconstitu-tional; even vested rights can be impingedif lawmakers have a good-enough reason.

Both the U.S. Supreme Court and thisCourt have lamented the ‘‘ ‘elephantinemass of asbestos cases’ lodged in state andfederal courts,’’ 8 branding it a ‘‘crisis’’ 9

that ‘‘defies customary judicial administra-tion.’’ 10 In response, the bipartisan civil-justice reforms enacted in 2003’s HouseBill 4 effected a sea change in the Texas

4. DeCordova v. City of Galveston, 4 Tex. 470,479 (1849).

5. Barshop v. Medina County Underground Wa-ter Conservation Dist., 925 S.W.2d 618, 633–34 (Tex.1996). See also In re A.V., 113S.W.3d 355, 361 (Tex.2003) (citing Barshop,925 S.W.2d at 633–34).

6. Tex. Water Rights Comm’n v. Wright, 464S.W.2d 642, 648 (Tex.1971) (‘‘Mere retroac-tivity is not sufficient to invalidate a statute.’’).As we put it more recently, ‘‘not all statutesthat apply retroactively are constitutionallyprohibited.’’ Subaru of Am., Inc. v. DavidMcDavid Nissan, Inc., 84 S.W.3d 212, 219(Tex.2002).

7. Our Bill of Rights also says ‘‘no law shallever be passed curtailing the liberty of speechor of the press,’’ Tex. Const. art. I, § 8, but itis fundamental that such unequivocal lan-guage must yield to reasonable limits.

8. Norfolk & W. Ry. v. Ayers, 538 U.S. 135,166, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003)(quoting Ortiz v. Fibreboard Corp., 527 U.S.815, 821, 119 S.Ct. 2295, 144 L.Ed.2d 715

(1999)); see In re Ethyl Corp., 975 S.W.2d606, 610 (Tex.1998) (‘‘Our state trial courtshave gained considerable experience in man-aging the thousands of claims asserted inasbestos litigation.’’).

9. Amchem Prods., Inc. v. Windsor, 521 U.S.591, 597, 117 S.Ct. 2231, 138 L.Ed.2d 689(1997); In re GlobalSanteFe Corp., 275S.W.3d 477, 482 (Tex.2008).

10. Ayers, 538 U.S. at 166, 123 S.Ct. 1210; seealso CSR Ltd. v. Link, 925 S.W.2d 591, 597(Tex.1996) (‘‘[T]he state expends a largeamount of its limited judicial resources re-solving these massive [asbestos] controversies.Under these circumstances, a trial on themerits would further overtax the state’s judi-cial resources.’’). At least recently, Texas ledthe nation in asbestos-related litigation. Actof May 16, 2005, 79th Leg., R.S., ch. 97,§ 1(e), 2005 Tex. Gen. Laws 169. The 2005Legislature that enacted SB 15’s extensivereforms for handling asbestos and silica casesincluded findings in the statutory text describ-ing in detail how the ‘‘crush of asbestos litiga-tion has been costly to employers, employees,litigants, and the court system.’’ Id. § 1(g).


tort landscape; 11 likewise the omnibus as-bestos-litigation reforms enacted in 2005’sSenate Bill 15.12 Both measures sought toaddress perceived flaws in asbestos-relatedlitigation—HB 4 by limiting so-called ‘‘in-nocent successor’’ liability (immediatelyand retroactively),13 and SB 15 via moresweeping reforms for asbestos and silicaclaims.14

In upholding a retroactive water regula-tion in Barshop, we expressly relied onformal and extensive findings that theLegislature made part of the statutorytext itself: ‘‘Based on these legislativefindings, we conclude that the Act is neces-sary to safeguard the public welfare of thecitizens of this state. Accordingly, the ret-roactive effect of the statute does not ren-der it unconstitutional.’’ 15 Chapter 149’senacted text includes no such findings.Instead, Crown Cork relies on the legisla-tive record, contending it amply under-scores an urgent public need: protectingimperiled-but-nonculpable companies in or-der to safeguard the livelihoods of endan-

gered-but-innocent employees, pensioners,and local economies.16

Nobody disputes ‘‘the authority of theLegislature to make reasoned adjustmentsin the legal system.’’ 17 But lawmakersaiming to statutorily prescribe what isconstitutionally proscribed must make aconvincing case. As the Court carefullyexplains, the sparse record underlyingchapter 149 falls short of what must beshown before someone is made to surren-der a constitutional right.

This case concerns high-stakes issuesfar beyond chapter 149, principallyhow the Texas Constitution allo-cates governing power.

Today’s case is not merely about wheth-er chapter 149 singled out Barbara Robin-son and unconstitutionally snuffed out herpending action against a lone corporation.Distilled down, it is also a case about howTexans govern themselves.

11. Act of June 2, 2003, 78th Leg., R.S., ch.204, §§ 1.01–23.03, 2003 Tex. Gen. Laws 847.

12. Act of May 16, 2005, 79th Leg., R.S., ch.97, §§ 1–12, 2005 Tex. Gen. Laws 169.

13. Act of June 2, 2003, 78th Leg., R.S., ch.204, § 17.01, 2003 Tex. Gen. Laws 847, 892(codified at TEX. CIV. PRAC. & REM.CODE

§ 149.003(a)).

14. Act of May 16, 2005, 79th Leg., R.S., ch.97, §§ 1–12, 2005 Tex. Gen. Laws 169. SB15 was not immediately effective, unlike HB4’s successor-liability provision, but most ofSB 15’s provisions were quasi-retroactive, af-fecting pending claims that had not yet beguntrial. See id. §§ 2, 9, 12.

15. Barshop, 925 S.W.2d at 634.

16. Though rummaging around in legislativeminutiae for extratextual clues is an exerciseprone to contrivance and manipulation, En-tergy Gulf States, Inc. v. Summers, 282 S.W.3d433, 469–75 (Tex.2009) (Willett, J., concur-

ring in part and in the judgment); AIC Mgmt.v. Crews, 246 S.W.3d 640, 649–50 (Tex.2008)(Willett, J., concurring), I am mindful in to-day’s narrow police-power context that theU.S. Supreme Court (including its most ar-dent legislative-history skeptics) has assesseda statute’s constitutionality under the Com-merce Clause by seeking ‘‘even congressionalcommittee findings,’’ United States v. Lopez,514 U.S. 549, 562, 115 S.Ct. 1624, 131L.Ed.2d 626 (1995) (citing Preseault v. ICC,494 U.S. 1, 17, 110 S.Ct. 914, 108 L.Ed.2d 1(1990)). It merits mention, though, thatchapter 149’s legislative history illustrates thesort of cherry-picking that often taints suchforays. As the Court notes, a comment in theSenate chamber describes the law as an‘‘agreed arrangement’’ involving ‘‘CrownCork and Seal,’’ while a ‘‘statement of legisla-tive intent’’ inserted by the House sponsordiscusses the liabilities of ‘‘a corporation’’without mentioning Crown Cork at all. 335S.W.3d 126.

17. Owens Corning v. Carter, 997 S.W.2d 560,574 (Tex.1999).


Delimiting the outer edge of police-pow-er constitutionality has bedeviled Texascourts for over a century. The broaderissue of a citizen’s relationship with theState has confounded for centuries longer.

1 From 1651: ‘‘For in a way beset withthose that contend on one side for toogreat Liberty, and on the other sidefor too much Authority, ‘tis hard topasse between the points of both un-wounded.’’ 18

1 From 1851: ‘‘It is much easier to per-ceive and realize the existence andsources of [the police power] than tomark its boundaries, or prescribe lim-its to its exercise.’’ 19

1 From 1907: The question whether alaw can stand as a valid exercise of thepolice power ‘‘may be involved in mistsas to what police power means, orwhere its boundaries may terminate.It has been said that police power islimited to enactments having referenceto the comfort, safety, or the welfareof society, and usually it applies to theexigencies involving the public health,safety, or morals.’’ 20

Gauzy definitions such as these—and la-ments over such imprecision—offer scantcomfort in this enterprise. The issue iselemental, but not elementary. Fortunate-ly, we are not entirely without guidance.

Appropriately weighty principles guideour course. First, we recognize that policepower draws from the credo that ‘‘theneeds of the many outweigh the needs ofthe few.’’ Second, while this maxim ringsutilitarian and Dickensian (not to mentionVulcan 21), it is cabined by something con-trarian and Texan: distrust of intrusivegovernment and a belief that police poweris justified only by urgency, not expedien-cy. That is, there must exist a societalperil that makes collective action impera-tive: ‘‘The police power is founded in pub-lic necessity, and only public necessity canjustify its exercise.’’ 22 Third, whether thesurrender of constitutional guarantees isnecessary is a legislative call in terms ofdesirability but a judicial one in terms ofconstitutionality. The political branchesdecide if laws pass; courts decide if lawspass muster. The Capitol is the center ofpolicymaking gravity, but the Constitutionexerts the strongest pull, and police powermust bow to constitutional commands: ‘‘asbroad as [police power] may be, and ascomprehensive as some legislation hassought to make it, still it is subsidiary andsubordinate to the Constitution.’’ 23

Fourth, because the Constitution claimsour highest allegiance, a police-power ac-tion that burdens a guarantee like theRetroactivity Clause must make a convinc-ing case.24 Finally, while police power nat-

18. THOMAS HOBBES, LEVIATHAN xiii (A.R. Wallered., Cambridge Univ. Press 1904) (1651).

19. Commonwealth v. Alger, 61 Mass. 53, 85(Mass.1851).

20. Jordan v. State, 51 Tex.Crim. 531, 103 S.W.633, 634 (1907).

21. See STAR TREK II: THE WRATH OF KHAN (Para-mount Pictures 1982). The film referencesseveral works of classic literature, none moreprominently than A Tale of Two Cities. Spockgives Admiral Kirk an antique copy as a birth-day present, and the film itself is bookendedwith the book’s opening and closing passages.

Most memorable, of course, is Spock’s fa-mous line from his moment of sacrifice:‘‘Don’t grieve, Admiral. It is logical. Theneeds of the many outweigh TTT’’ to whichKirk replies, ‘‘the needs of the few.’’

22. Spann v. City of Dallas, 111 Tex. 350, 235S.W. 513, 515 (1921).

23. Jordan, 103 S.W. at 634.

24. See Methodist Healthcare Sys. of San Anto-nio, Ltd. v. Rankin, 307 S.W.3d 283, 286(Tex.2010) (an exercise of legislative policepower ‘‘is not sustained when it is arbitraryor unreasonable’’) (footnote, citation omitted).


urally operates to abridge private rights,our Constitution, being inclined to free-dom, requires that such encroachments beas slight as possible: ‘‘Private rights arenever to be sacrificed to a greater extentthan necessary.’’ 25

If judicial review means anything, it isthat judicial restraint does not allow ev-erything. Yes, courts must respect dem-ocratically enacted decisions; popularsovereignty matters. But the Texas Con-stitution’s insistence on limited govern-ment also matters, and that vision ofenumerated powers and personal libertybecomes quaint once courts (perhaps ow-ing to an off-kilter grasp of ‘‘judicial ac-tivism’’) decide the Legislature has limit-less power to declare its actions justifiedby police power. At that constitutionaltipping point, adjudication more resem-bles abdication.

Whatever the police power’s amorphousboundaries, we know these two things: (1)the Legislature may ask for private sacri-fice, and receive it—provided the privaterights sacrificed are outweighed in publicgood, burdened as little as possible, andamply justified on public-necessitygrounds; and (2) the Legislature’s policepower is not infinitely elastic, able to extin-guish constitutional liberties with noncha-lance. Texans long ago and since haveembraced constitutional, meaning limited,government. The judiciary thus has a su-perseding obligation to disapprove certainencroachments on liberty, no matter thelegislative vote-count. Put another way,judicial review sometimes means thwartingtoday’s majority from thwarting yester-

day’s supermajority—the one that ratifiedour solemn Constitution.26

Legislative police power is not constitu-tional carte blanche to regulate allspheres of everyday life; preemi-nence does not equal omnipotence.

The Texas Bill of Rights—enshrined torecognize and establish ‘‘the general, greatand essential principles of liberty and freegovernment’’ 27—declares an emphatic‘‘no’’ to myriad government undertakings:no religious test for office, no double jeop-ardy, no self-incrimination, no curtailmentof free speech, etc. It is, like its federalcounterpart, irrefutably framed in pro-scription. And, like its federal counter-part, its limitations are not exception-free;desperate times permit desperate meas-ures (to a point). But we should steadfast-ly resist defining desperation down. Ex-ceptions to constitutional guarantees arereal but also rare, just like modern cita-tions to Marbury v. Madison: ‘‘The pow-ers of the legislature are defined, and lim-ited; and that those limits may not bemistaken, or forgotten, the constitution iswritten.’’ 28

The ‘‘danger that liberty should be un-dervalued’’ necessarily implicates ‘‘the ad-justment of the boundaries between it andsocial control.’’ 29 There must remain judi-cially enforceable constraints on legislativeactions that are irreconcilable with consti-tutional commands. If legislators come tobelieve that police power is an ever-pres-ent constitutional trump card they can play

25. Spann, 235 S.W. at 515.

26. See DANIEL A. FARBER & SUZANNA SHERRY,

DESPERATELY SEEKING CERTAINTY: THE MISGUIDED

QUEST FOR CONSTITUTIONAL FOUNDATIONS 143(2002).

27. Tex. Const. art. I.

28. Marbury v. Madison, 5 U.S. (1 Cranch)137, 176, 2 L.Ed. 60 (1803).

29. JOHN STUART MILL, On Liberty, in THE BASIC

WRITINGS OF JOHN STUART MILL: ON LIBERTY, THE

SUBJECTION OF WOMEN, AND UTILITARIANISM 3, 58(The Modern Library 2002) (2d ed. 1863).


whenever it suits them, overreaching isinexorable.

To be sure, constitutional analysis is nu-anced and not prone to doctrinaire abso-lutes. It is easy to say the sovereign’sshield must never become a sledgeham-mer, but it is more difficult—and every bitas important—to discern the moment atwhich it threatens to become a switch-blade, carving quietly yet critically away atcherished rights.

It merits repeating that this Court andthe U.S. Supreme Court have long per-mitted legislative bodies to burden consti-tutional freedoms upon a strong public-welfare showing. The reason chapter 149offends the Retroactivity Clause is be-cause it lacks that showing. Indeed, ifchapter 149’s meager record were suffi-cient, there would be scant defenseagainst future police-power incursions—in-cursions that, while ostensibly well-mean-ing, shrink the sphere of protected libertyand erode bit by bit the notion of limitedgovernment. ‘‘Experience is the oracle oftruth,’’ 30 wrote Madison, and historyteaches this is a ratchet that clicks onlyone way.

Robinson’s case provides a real and im-portant reminder of the limits of legislative

power and the scope of judicial review.But after her case has come and gone, Ihope what Edmund Burke called a ‘‘fiercespirit of liberty’’ 31 will help steer a coursewith senses heightened to constitutionalguardrails.

Police power is an attribute of sover-eignty, but sovereignty ultimatelyrests in ‘‘the people of the State ofTexas.’’ 32

The Texas Constitution places limits ongovernment encroachments, and does soon purpose. Our Bill of Rights is not merehortatory fluff; it is a purposeful check ongovernment power. Everyday Texans,and the courts that serve them, must re-main vigilant, lest we permit boundlesspolice power, often couched in soaringprose, to abridge our Constitution’s endur-ing ‘‘principles of liberty and free govern-ment.’’ 33 As Justice Brandeis warned inhis now-celebrated Olmstead dissent: ‘‘Ex-perience should teach us to be most onguard to protect liberty when the Govern-ment’s purposes are beneficent.’’ 34

Shortly after the Federal Constitutionwas approved in September 1787, ThomasJefferson wrote James Madison from Par-is, advocating a Bill of Rights and also

30. THE FEDERALIST No. 20 (James Madison).

31. EDMUND BURKE, Speech on Moving His Reso-lutions for Conciliation with the Colonies,Mar. 22, 1775, in EDMUND BURKE: SELECTED

WRITINGS AND SPEECHES 189 (Peter J. Stanlised., 2009) (‘‘In this character of the Ameri-cans a love of freedom is the predominatingfeature which marks and distinguishes thewhole: and as an ardent is always a jealousaffection, your colonies become suspicious,restive, and untractable, whenever they seethe least attempt to wrest from them by force,or shuffle from them by chicane, what theythink the only advantage worth living for.This fierce spirit of liberty is stronger in theEnglish colonies, probably, than in any otherpeople of the earthTTTT’’).

32. Tex. Const. pmbl.

33. Tex. Const. art. I.

34. Olmstead v. United States, 277 U.S. 438,479, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Bran-deis, J., dissenting), overruled by Katz v. Unit-ed States, 389 U.S. 347, 88 S.Ct. 507, 19L.Ed.2d 576 (1967). Or, as 18th-century phi-losopher David Hume cautioned, ‘‘It is sel-dom that liberty of any kind is lost all atonce.’’ Rather, suppression ‘‘must steal inupon [people] by degrees, and must disguiseitself in a thousand shapes in order to bereceived.’’ David Hume, Of the Liberty of thePress 1, 262 n.4, in HUME: POLITICAL ESSAYS

(Knud Haakonssen ed., Cambridge Univ.Press 1994) (1741).


voicing confidence that the people wouldbe the best sentries against overreachinggovernment: ‘‘[I am] convinced that ontheir good senses we may rely with themost security for the preservation of a duedegree of liberty.’’ 35 Jefferson was right.We are our own best lookouts against inva-sions, however well-intentioned, that si-phon our ‘‘due degree of liberty’’—siphon-ing that often occurs subtly, with suchdrop-by-drop gentleness as to be imper-ceptible.

To be sure, Members of the Texas Leg-islature have sworn to ‘‘preserve, protect,and defend the Constitution and laws ofthe United States and of this State,’’ 36 andthey doubtless believe their enactmentshonor basic constitutional guarantees. Inever second-guess the Legislature’s mo-tives and goodwill (and have never neededto); we are blessed with 181 lawmakerswho serve Texas with full hearts.37 Butwhere the Constitution is concerned, thejudiciary’s role as referee—confined yetconsequential—must leaven big-hearted-ness with tough-mindedness.

* * *

Summing up: Judges are properly def-erential to legislative judgments in mostmatters, but at some epochal point, whenpolice power becomes a convenient talis-man waved to short-circuit our constitu-

tional design, deference devolves into dere-liction. The Legislature’s policymakingpower may be vast, but absent a convinc-ing public-welfare showing, its police pow-er cannot be allowed to uproot libertiesenshrined in our Constitution.

Justice WAINWRIGHT, joined byJustice JOHNSON, dissenting.

The Legislature enacted Chapter 149 ofthe Civil Practice and Remedies Code toprotect businesses, which acquired otherentities, from financial disaster based sole-ly upon the acquired entities’ past, discon-tinued manufacture of asbestos products.The statute limits the liability of the ac-quiring business, which had not engaged inthe asbestos business, to the fair marketvalue of the acquired entity at the time ofthe acquisition. Through Chapter 149, theLegislature balances limitations on asbes-tos-related recoveries against protectingthe assets and employees of businesseswho did not cause the illness, while leavingintact the entirety of potential liability anddamages proven against companies thatwere involved in the asbestos business andare, perhaps, more culpable. The Court’sholding that the legislation is unconstitu-tional prevents the Legislature from ad-dressing an injustice arising from a crisis

35. Letter from Thomas Jefferson to JamesMadison, Paris (1787), in THE JEFFERSON CYCLO-

PEDIA: A COMPREHENSIVE COLLECTION OF THE VIEWS

OF THOMAS JEFFERSON 277 (John P. Foley ed.,1900).

36. Tex. Const. art. XVI, § 1.

37. My dissenting colleagues’ meticulous anal-ysis shows that today’s difficult case has sev-eral moving pieces, each seemingly weightierand more perplexing than the one before.This is ‘‘a Supreme Court case’’ in every senseand one that has occupied our attention for along time, arriving at the Court before ourtwo newest Justices. So reasonable judicialminds can certainly differ (and on this Court

they frequently do). But an important pointmust be made: There is a profound differencebetween an activist judge and an engagedjudge. I am honored to serve with none ofthe former and eight of the latter. Nothing inthis concurrence should be distorted into crit-icism of either lawmakers who passed chapter149 or judges who passed upon it. My cau-tions today about unconstrained police powerare entirely forward-looking, speaking towhat can happen if judges, while not activistare also not properly active, instead prefer-ring to leave police power unpoliced, thusinviting the other branches to flex ever-broad-er powers. My concerns are less centered onthis case than on future ones.


that caused dozens of bankruptcies and theloss of thousands of jobs in this state andthroughout the country due to asbestos-related litigation. See, e.g., JonathanOrszag, The Impact of Asbestos Liabilitieson Workers in Bankrupt Firms, Remarksat the Asbestos Litigation Symposium atthe South Texas College of Law in Hous-ton, Tex. (Mar. 7, 2003), in 44 S. TEX.

L.REV. 1077, 1078–80 (2003) (describing re-sults of a study indicating that sixty-onecompanies entered into bankruptcy andthat 52,000 to 60,000 people lost their jobsdue to asbestos litigation).

The Court’s new balancing test reachesthe wrong result. By holding that an un-liquidated claim with ‘‘substantial basis infact’’ is entitled to constitutional protec-tion, it ignores an important principle.335 S.W.3d 126. The constitutional retro-activity doctrine does not protect an as-serted entitlement to property one doesnot own, and until a final judgment in acase, we do not know whether the claimwill be vindicated or refuted. The Court’sreasoning that the right to file a claim isprotected by the retroactivity doctrine be-cause, at least in part, the claim is wellfounded with a ‘‘substantial basis in fact’’springing from a ‘‘mature tort’’ with ‘‘morepredictable’’ recovery, is a troubling propo-sition. 335 S.W.3d 126. It is unclear whatthat means, but it suggests that the consti-tutional retroactivity protection is depen-dent on the perceived strength of a claim.The likelihood of success in litigation isdependent on a myriad of factors thatmake such predictions difficult at best.We have held that an unliquidated person-al injury claim is not a protected propertyinterest, and the contingent recovery fromone should not be either.

While JUSTICE MEDINA, who writes sepa-rately, and I disagree on the result, weagree that the Court should not abandonvested rights jurisprudence in favor of a

new and uncertain approach. The analysisin the Court’s opinion is contrary to boththe clear rule among the federal courts ofappeals that have addressed the issue andthe majority rule among our courts ofappeals. The Court could rely on tradi-tional police power jurisprudence in which,even if the Robinsons had a vested right intheir unliquidated cause of action, courtsconsider whether the Legislature’s actionwas justified by its constitutionally recog-nized police power to act in the interest ofthe health and welfare of Texas. Indeed,the Court’s new balancing test for retroac-tivity analysis is similar to the police pow-er balancing test I expound under existinglaw, but is newly incorporated into theretroactivity doctrine. For all these rea-sons, I respectfully dissent.

I. BACKGROUND

John Robinson served in the Navy fortwenty years, and during that time he wasexposed to steam pipes and boiler doorscoated with insulation containing asbestos.Some of the insulation and other productswere marked with a ‘‘big M,’’ the trade-mark used by Mundet Cork Corporation.In August 2002, Robinson was diagnosedwith mesothelioma. He claims the diseaseoccurred as a result of his exposure toasbestos in, among others, insulation prod-ucts produced by Mundet.

Crown Cork itself has never been in thebusiness of mining, manufacturing, install-ing, selling, distributing, removing, or oth-erwise making asbestos or any asbestos-containing product. However, on Novem-ber 7, 1963, Crown Cork’s predecessor en-tered into an agreement to purchase themajority of Mundet’s stock after the ma-jority shareholder died and offered theshares for sale. Crown Cork paid approxi-mately $7 million for the stock, a majorityinterest in the company.


Mundet ceased manufacturing insulationproducts prior to Crown Cork’s acquisitionof Mundet, but continued to hold insulationproducts in stock until early 1964, when athird-party entity purchased the assets ofMundet’s insulation division, including itsinventory, contracts, raw materials, andaccounts receivables. On January 4, 1966,Mundet statutorily merged with CrownCork’s predecessor, and in 1989 CrownCork was reincorporated in Pennsylvania.1

After he had been diagnosed with meso-thelioma, Mr. Robinson and his wife filedsuit in 2002 against Crown Cork and twen-ty other defendants for damages caused byMr. Robinson’s exposure to asbestos-con-taining products. The Robinsons soughtto hold each defendant jointly and several-ly liable. On November 25, 2002, the Rob-insons filed a motion for partial summaryjudgment to establish Crown Cork’s liabili-ty for actual damages as Mundet’s succes-sor. Crown Cork did not contest its suc-cessor liability for compensatory damages,and on July 16, 2003 the trial court grant-ed the Robinsons’ motion, holding thatCrown Cork ‘‘is liable and bears responsi-bility for the compensatory damages, ifany, awarded to Plaintiffs that are attrib-utable to the conduct, products, or torts ofits predecessor Mundet Cork Corpora-tion.’’

House Bill 4, a bill drafted to compre-hensively address perceived crises in medi-cal malpractice, asbestos, and other litiga-tion issues in Texas, was introduced in theTexas House of Representatives on Febru-ary 17, 2003, without any provision regard-ing successor asbestos liability. Tex. H.B.4, 78th Leg., R.S. (2003). Its purpose wasto operate as a ‘‘comprehensive civil justice

reform bill intended to address and correctproblems that currently impair the fair-ness and efficiency of our court system.’’House Comm. on Civil Practices, Bill Anal-ysis, Tex. H.B. 4, 78th Leg., R.S. at 1(2003).

In late March 2003, more than 100amendments were submitted to the Bill,including Article 17, the asbestos succes-sor-liability article. The article was debat-ed on the floor of the House on March 25,2003 and passed the House three dayslater. Both the House and Senate heldhearings on the bill as a whole. In anApril 30, 2003 meeting of the Senate StateAffairs Committee, Senator Ratliff, thecommittee chair, introduced hearings onthe Senate Substitute to House Bill 4. Hedescribed Article 17 as follows:

Article 17, limitations in civil actions ofliabilities relating to certain mergers orconsolidations. This, members, is theCrown Cork and Seal asbestos issue.What we have put in this bill is what Iunderstand to be an agreed arrange-ment between all of the parties in this—in this matter.

Hearings on the Proposed Senate Substi-tute for H.B. 4 Before the S. Comm. onState Affairs, 78th Leg., R.S. (Apr. 30,2003) (Statement of Sen. Bill Ratliff,Chairman, S. Comm. on State Affairs).The act passed the Senate on May 16,2003; the House accepted the ConferenceCommittee compromise bill on June 1,2003; both adopted corrections on June 2,2003; and the bill was signed into law bythe Governor on June 11, 2003. Act ofJune 2, 2003, 78th Leg., R. S., ch. 204, 2003Tex. Gen. Laws 847, 899 (codified at TEX.

CIV. PRAC. & REM.CODE §§ 149.001–.006).

1. The term ‘‘statutory merger’’ is used to dis-tinguish business mergers made pursuant tothe statutory scheme of the state of incorpo-ration from other, nonstatutory forms of com-binations, for example asset-purchase and

stock-purchase transactions. 20A ROBERT W.HAMILTON, ELIZABETH S. MILLER, & ROBERT A.RAGAZZO, TEXAS PRACTICE SERIES: BUSINESS ORGAN-

IZATIONS § 43.2 (2d ed.2004).


With a two-thirds vote in both chambers,the bill took effect immediately and wasmade retroactive to all cases ‘‘pending onthat effective date and in which the trial,or any new trial or retrial following mo-tion, appeal, or otherwise, begins on orafter that effective date.’’ 2 Id. § 17.02(2),2003 Tex. Gen. Laws at 895; see also TEX.

CONST. art. III, § 39 (‘‘No law passed bythe Legislature, except the general appro-priation act, shall take effect or go intoforce until ninety days after the adjourn-ment of the session at which it was enact-ed, unless the Legislature shall, by a voteof two-thirds of all the members elected toeach House, otherwise direct; said vote tobe taken by yeas and nays, and enteredupon the journals.’’).

The act limits the ‘‘cumulative successorasbestos-related liabilities’’ ‘‘incurred by acorporation as a result of or in connectionwith a merger or consolidation TTT with orinto another corporation or that are relat-ed in any way to asbestos claims based onthe exercise of control or the ownership ofstock of the corporation before the mergeror consolidation that occurred’’ prior toMay 13, 1968. TEX. CIV. PRAC. & REM.CODE

§§ 149.001–.003.3 The asbestos liabilitiesof successor corporations ‘‘are limited tothe fair market value of the total grossassets of the transferor determined as ofthe time of the merger or consolidation,’’id. § 149.003(a), and adjusted for inflationat a simple interest rate of the prime rateplus one percent, id. § 149.005(a). An ‘‘as-bestos claim’’ is ‘‘any claim, wherever or

whenever made, for damages, losses, in-demnification, contribution, or other reliefarising out of, based on, or in any wayrelated to asbestos, including’’ propertydamage caused by asbestos, the health ef-fects of asbestos exposure, or any claimmade by or on behalf of any person ex-posed to asbestos. Id. § 149.001(1). TheLegislature clearly intended to limit recov-eries only against so-called ‘‘innocent’’ suc-cessor companies.

According to Crown Cork’s experts, byMay 2003, Crown Cork had paid or agreedto pay asbestos related claims, not coveredby insurance, totaling more than seventimes the present value of Mundet accord-ing to the statutory formula. On July 3,2003, Crown Cork filed a Motion for Sum-mary Judgment raising the affirmative de-fense of Chapter 149, introducing evidenceof the value of Mundet and total asbestos-related payments made by Crown Cork todate. The Robinsons asserted that thestatute was a ‘‘special law’’ in violation ofarticle III, section 56 of the Texas Consti-tution, that it deprived the Robinsons of avested property right in violation of articleI, section 16 of the Texas Constitution,that the statute was an unconstitutionaltaking, violating article I, section 17 of theTexas Constitution and the Fifth andFourteenth Amendments to the UnitedStates Constitution, that it constituted adeprivation of substantive due processrights under the Texas and United StatesConstitutions, that it deprived John Rob-

2. The House also defeated an amendmentmaking the bill applicable only to successorliabilities assumed or incurred after the effec-tive date of the act. H.J. of Tex., 78th Leg.,R.S. 818–19 (2003).

3. The act also provides a number of excep-tions, excluding, among other things, work-ers’ compensation claims, an insurance cor-poration, a claim made in a bankruptcyproceeding begun prior to April 1, 2003,claims for premises liability, or claims

against a ‘‘successor that, after merger orconsolidation, continued in the business ofmining asbestos or in the business of sellingor distributing asbestos fibers or in the busi-ness of manufacturing, distributing, remov-ing, or installing asbestos-containing prod-ucts which were the same or substantiallythe same as those products previously man-ufactured TTT by the transferor.’’ Id.§ 149.002(b).


inson of a contractual right, contrary toarticle I, section 16 of the Texas Constitu-tion, and deprived John Robinson of hiscommon law causes of action in violationof the Open Courts guarantee in article I,section 13 of the Texas Constitution. TheRobinsons raise only the retroactivity andspecial law challenges before this Court.Implicitly finding that Crown Cork had es-tablished that the statute applied to it as amatter of law, and that Crown Cork hadalready paid liabilities in excess of Mun-det’s adjusted value, the trial court grant-ed Crown Cork’s motion for summaryjudgment on October 2, 2003. It issuedan amended order nineteen days later,dismissing claims against Crown Corkbrought by the Robinsons.4 The Robin-sons nonsuited their remaining claimsagainst Crown Cork and then appealedthe summary judgment.5 The court ofappeals affirmed. Characterizing the ju-risprudence on vested rights as ‘‘inconsis-tent and difficult to use as a guide,’’ thecourt instead balanced the Legislature’spolice power against the private rights im-pacted by the statute, and held that thestatute was constitutional. 251 S.W.3d520, 532–35 (Tex.App.-Houston [14th Dist.]2006, pet. granted). One justice dissent-ed, arguing that the court should haveapplied a vested rights analysis and con-

cluded that the statute violated article I,section 16. Id. at 551–52 (Frost, J., dis-senting).

II. ANALYSIS

In this Court, the Robinsons raise onlytwo issues, and both are grounded exclu-sively in Texas law. They argue thatChapter 149 of the Texas Civil Practiceand Remedies Code is an unconstitutional‘‘special law’’ and that it is unconstitution-ally retroactive when applied to the Robin-sons’ claims to effectively bar recovery.6

As the party challenging the constitution-ality of the statute, the Robinsons mustovercome the presumptions that ‘‘the Leg-islature intended for the law to complywith the United States and Texas Consti-tutions, to achieve a just and reasonableresult, and to advance a public rather thana private interest.’’ Tex. Mun. LeagueIntergovernmental Risk Pool v. Tex.Workers’ Comp. Comm’n, 74 S.W.3d 377,381 (Tex.2002) (citing TEX. GOV’T CODE

§ 311.021; Spence v. Fenchler, 107 Tex.443, 180 S.W. 597, 605 (1915)). The Robin-sons also bear the burden of showing thatthe law is contrary to a provision of thestate constitution. See, e.g., Walker v. Gu-tierrez, 111 S.W.3d 56, 66 (Tex.2003). TheRobinsons’ retroactivity claim is an as-applied challenge, which means that they

4. The Robinsons’ remedies against the otherdefendants pending at the time of the enact-ment of the statute was not limited by Chap-ter 149, but their remedy against Crown Corkwas. The Robinsons eventually recovered atleast $850,000 from other defendants sued inaddition to Crown Cork.

5. On November 16, 2003, after the trial courtentered its amended order granting summaryjudgment, John Robinson died. Mrs. Robin-son continued to prosecute her claims indi-vidually and as representative of the estate ofJohn Robinson. Because the claims still liveindependently, one for Mrs. Robinson andone for the estate of John Robinson, this opin-ion will refer to petitioners as the Robinsons.

6. The Court astutely notes that, due to the oddprocedural posture of the case, as well as Mr.Robinson’s untimely passing, it is unclearwhich legal claims are being allegedly retro-actively extinguished. Because the partiesraise only whether Chapter 149 is unconstitu-tionally retroactive as applied to Mr. Robin-son’s common law claims (kept alive throughthe survival statute and pursued derivativelythrough the wrongful death statute) I, as theCourt, address only those arguments. How-ever, as more fully discussed below, the factthat the Robinsons’ claims are statute-basedreinforces the conclusions of this vested rightsanalysis.


must demonstrate that the statute is un-constitutional as it operates in practiceagainst them. Tex. Mun. League, 74S.W.3d at 381 (citing Tex. Workers’ Comp.Comm’n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex.1995)). Their special law chal-lenge is a facial challenge, which meansthat the Robinsons must demonstratethere is no conceivable set of facts thatcould exist under which the statute wouldbe constitutional. Garcia, 893 S.W.2d at520.

In this case the Court determines thatthe law is unconstitutionally retroactiveand thus does not reach the special lawchallenge. However, for the reasons thatfollow, I would hold that the law survivesboth challenges, but for reasons differentfrom those articulated by the court of ap-peals.

A. Retroactive Law

Article I, section 16 of the Texas Consti-tution, part of the Texas Bill of Rights,declares that ‘‘[n]o bill of attainder, ex postfacto law, retroactive law, or any law im-pairing the obligation of contracts, shall bemade.’’ TEX. CONST. art. I, § 16. A retro-active law ‘‘takes away or impairs vestedrights acquired under existing lawsTTTT’’Paschal v. Perez, 7 Tex. 348, 365 (1851).A retroactive law means a law applying tothings that are past. DeCordova v. City ofGalveston, 4 Tex. 470, 475 (1849).

Of course, not every law that affectsrelationships among parties based uponevents occurring in the past is automatical-ly unconstitutional, just as not every lawthat may affect a person’s right to speak,that may affect a contractual obligation, orthat may allow a search of a person’sdwelling without a warrant, is unconstitu-tional. See Subaru of Am. v. DavidMcDavid Nissan, Inc., 84 S.W.3d 212, 219(Tex.2002). This Court has articulatedthree doctrines that further define the

scope of the retroactivity prohibition.First, a law is not unconstitutionally retro-active unless it impairs a person’s ‘‘vestedrights.’’ E.g., id. at 219. Second, a law isnot unconstitutionally retroactive if it onlymodifies or reduces the person’s remedy.E.g., City of Tyler v. Likes, 962 S.W.2d489, 502 (Tex.1997); Holder v. Wood, 714S.W.2d 318, 319 (Tex.1986). And finally,even if the law affects a person’s vestedrights, and not a remedy, a law may notviolate the retroactivity prohibition if thegovernment’s interest in protecting soci-ety, based upon its police power, outweighsthe individual’s interest in his or her par-ticular right. E.g., Barshop v. MedinaCnty. Underground Water ConservationDist., 925 S.W.2d 618, 633–34 (Tex.1996).The first two tests are definitional—thisCourt has determined that a retroactivelaw does not implicate article I, section 16of the Constitution unless the law bothaffects a vested right and impairs an actualright, not merely a remedy or a procedure.The third test may operate as an exceptionto the rule. Although related, the reviewof each doctrine is separate. E.g., In reA.V. & J.V., 113 S.W.3d 355, 361 (Tex.2003) (describing ‘‘exceptions’’ to retroac-tivity); David McDavid Nissan, 84 S.W.3dat 219 (analyzing the procedural/remedialtest as part of the vested rights exceptionbecause ‘‘procedural and remedial statutestypically do not affect a vested right’’).Although the Court has not had occasionrecently to address the specific meaning ofarticle I, section 16’s prohibition of retro-active laws, our precedents provide a use-ful roadmap.

1. Vested Rights

Vested rights derive from ‘‘[c]onsider-ations of fair notice, reasonable reliance,and settled expectations.’’ Owens Corningv. Carter, 997 S.W.2d 560, 572–73 (Tex.1999). ‘‘A retroactive statute only violates


our Constitution if, when applied, it takesaway or impairs vested rights acquiredunder existing law.’’ David McDavid Nis-san, 84 S.W.3d at 219 (citing Ex parteAbell, 613 S.W.2d 255, 260 (Tex.1981));McCain v. Yost, 155 Tex. 174, 284 S.W.2d898, 900 (1955).

We explained ‘‘vested rights’’ in Exparte Abell:

[A] right, in a legal sense, exists, when,in consequence of the existence of givenfacts, the law declares that one person isentitled to enforce against another agiven claim, or to resist the enforcementof a claim urged by another. Facts mayexist out of which, in the course of timeor under given circumstances, a rightwould become fixed or vested by opera-tion of existing law, but until the state offacts which the law declares shall give aright comes into existence there cannotbe in law a right; and for this reason ithas been constantly held that, until theright becomes fixed or vested, it is law-ful for the lawmaking power to declarethat the given state of facts shall not fixit, and such laws have been constantlyheld not to be retroactive in the sense inwhich that term is used.

613 S.W.2d at 261 (quoting Mellinger v.City of Houston, 68 Tex. 37, 3 S.W. 249,253 (1887)) (emphasis added). ‘‘A rightcannot be considered a vested right unlessit is something more than a mere expecta-tion as may be based upon an anticipatedcontinuance of the present general laws; itmust have become a title, legal or equita-bleTTTT’’ Id. (citation omitted) (emphasisadded). This Court has clearly articulatedthat ‘‘no one has a vested right in thecontinuance of present laws in relation to aparticular subjectTTTT There cannot be avested right, or a property right, in a mererule of law.’’ Middleton v. Tex. Power &Light Co., 108 Tex. 96, 185 S.W. 556, 560(1916).

The court of appeals called the vestedrights analysis ‘‘inconsistent and difficultto use as a guide.’’ 251 S.W.3d at 526.Other courts of appeals have called thevested rights analysis ‘‘amorphous.’’ Simsv. Adoption Alliance, 922 S.W.2d 213, 216(Tex.App.-San Antonio 1996, writ denied);Ex parte Kubas, 83 S.W.3d 366, 369 (Tex.App.-Corpus Christi 2002, pet. ref’d).Courts from other states and commenta-tors have also criticized vested rights anal-yses, preferring an analysis requiring abalancing of the nature and strength of thepublic interest served by the statute, theextent to which the statute modifies orabrogates the pre-enactment right, and thenature of the right the statute alters. See,e.g., Owen Lumber Co. v. Chartrand, 276Kan. 218, 73 P.3d 753, 755–56 (2003); Pe-terson v. City of Minneapolis, 285 Minn.282, 173 N.W.2d 353, 356–57 (1969); seealso Charles B. Hochman, The SupremeCourt and the Constitutionality of Retro-active Legislation, 73 HARV. L.REV. 692,697 (1960). And the Court’s opinion, inrejecting a ‘‘bright-line test for unconstitu-tional activity,’’ and in recognizing that theTexas Constitution ‘‘does not insulate ev-ery vested right from impairment,’’ seemsto abandon the vested rights analysis alto-gether, or, at a minimum, detaches theconcept of vested rights from its tradition-al significance in a retroactivity analysis.335 S.W.3d 126. However, the doctrine’sdifficulty is not a justification to abandon itwholesale. For, at the core of the vestedrights doctrine lies an extremely importantprinciple—the constitutional retroactivitydoctrine does not protect an asserted enti-tlement to property one does not own, anduntil a final judgment in a case, we do notknow whether the lawsuit will prove orrefute a claim to recover.

Applying our century-old jurisprudence,I would hold that an accrued, but unliqui-dated cause of action is not a vested right


because: (1) the framers of the Texas Con-stitution would not have considered an un-liquidated cause of action to be a vestedproperty right entitled to protection underthe Retroactivity Clause; (2) a lawsuit isnot a right to recover anything but a con-tingent and unliquidated pursuit of aclaimed injury that may or may not besuccessful; and (3) until and unless a finaljudgment is rendered in favor of the claim-ant, there is no right to recover damageson the claim against another. See Mel-linger, 3 S.W. at 252; Graham v. Franco,488 S.W.2d 390, 393 (Tex.1972); Ex parteAbell, 613 S.W.2d at 260.

In interpreting the Texas Constitution,our duty is ‘‘to ascertain and give effect tothe plain intent and language of the fram-ers of [the constitution] and of the peoplewho adopted it.’’ Wilson v. GalvestonCnty. Cent. Appraisal Dist., 713 S.W.2d98, 101 (Tex.1986) (quoting Gragg v. Cayu-ga Indep. Sch. Dist., 539 S.W.2d 861, 866(Tex.1976)). We look

to such things as the language of theconstitutional provision itself, its pur-pose, the historical context in which itwas written, the intentions of the fram-ers [and ratifiers], the application in pri-or judicial decisions, the relation of theprovision to [other parts of the constitu-tion and] the law as a whole, the under-standing of other branches of govern-ment, the law in other jurisdictions,state and federal, constitutional and le-gal theory, and fundamental values in-cluding justice and social policy.

Davenport v. Garcia, 834 S.W.2d 4, 30(Tex.1992) (Hecht, J., concurring) (cita-tions omitted).

Examining the state of ‘‘vested rights’’and what constitutes a vested propertyright at the time of the framing of the 1876Constitution provides important insightinto what the Framers considered protect-ed by the Retroactivity Clause. Prior toand at the time of the adoption of theTexas Constitution in 1876, it was wellestablished that the doctrine of vestedrights created an exception to the prohibi-tion on retroactive legislation. See, e.g.,DeCordova, 4 Tex. at 475; Paschal, 7 Tex.at 365 (‘‘Mr. Justice Story defines a retro-spective law to be, one which takes awayor impairs vested rights acquired underexisting law, or creates a new obligation,or imposes a new duty, or attaches a newdisability in relation to transactions al-ready past.’’ (citing Soc’y for the Propa-gation of the Gospel v. Wheeler, 2 Gall.105, 138, 22 F. Cas. 756, 767 (No. 13,156)(C.C.D.N.H.1814))).7 A vested right isnow, and was then, considered some formof ‘‘property right.’’ Middleton, 185 S.W.at 560. However, at the time of the fram-ing of the Constitution of 1876, an accrued,but unliquidated, cause of action for per-sonal injury, was not ‘‘property’’ in anysense. See G.H. & S.A. R.R. v. Freeman,57 Tex. 156 (1882); Stewart v. H. & T.C.Ry. Co., 62 Tex. 246 (1884). Common lawtort causes of action for personal injurycould not be assigned and did not survivethe death of the victim. As described byChief Justice Greenhill:

By the clear weight of common law au-thority, a cause of action for personalinjury is not property in any sense, norfor any purpose till it has been reduced

7. See also Milam Cnty. v. Bateman, 54 Tex.153, 163 (1880); Moore v. Letchford, 35 Tex.185, 222 (1871) (Ogden, J., dissenting) (notingthat the Legislature may pass retrospectivelegislation that ‘‘would regulate’’ and neither‘‘create nor destroy vested rights’’ (emphasisadded)); Hamilton v. Avery, 20 Tex. 612

(1857); Nichols v. Pilgrim, 20 Tex. 426, 428–29 (1857) (discussing whether an executedcontract for the sale of land was a ‘‘vestedright’’ allowing suit for partition of land, not-withstanding the enactment of the statute offrauds).


to judgment; and the judgment, asproperty, takes its character as separateor common from the right violated incommitting the wrong—the personal in-jury.

Graham, 488 S.W.2d at 393 (emphasis add-ed) (quotation omitted); see also StateFarm Fire & Cas. Co. v. Gandy, 925S.W.2d 696, 706–07 (Tex.1996) (discussingthe role at common law regarding the as-signability and survivability of personal in-jury tort causes of action). Legislationwas required to amend both of those com-mon law rules. E.g., Act of May 4, 1895,24th Leg., R. S., ch. 89, § 1, 1895 Tex.Gen. Laws 143 (current version at TEX. CIV.

PRAC. & REM.CODE § 71.021) (allowing sur-vival of personal injury claims); TEX. PROP.

CODE § 12.014(a) (allowing ‘‘an interest ina cause of action on which suit has beenfiled’’ to be ‘‘sold, regardless of whetherthe TTT cause of action is assignable in lawor equity’’); Gandy, 925 S.W.2d at 707(noting that personal injury claims onlybecame assignable after they could survivethe owner’s death).

As in other circumstances, property istreated differently. In 1876, choses in ac-tion for injury to property were consideredproperty, and they were alienable, assigna-ble, and devisable.

[W]hen the injury affects the estaterather than the person, when the actionis brought for damage to the estate andnot for injury to the person TTT theright of action could be bought and sold.Such right of action, upon the death,bankruptcy or insolvency of the partyinjured, passes to the executor or as-signee as a part of his assetsTTTT

Graham, 488 S.W.2d at 393 (quoting Free-man, 57 Tex. at 158); see also Gandy, 925S.W.2d at 706 (noting that ‘‘[t]he pressuresagainst the rule of inalienability were com-mercial and thus affected only debts andother contract rights that were not person-

al to the owner and could survive to hisestate upon his death’’). The common lawin Texas did not consider tort causes ofaction for personal injury to be ‘‘property,’’and ‘‘vested rights’’—a concept recognizedin common law at the time of the framingof the 1876 Constitution—are a species ofproperty. Therefore, under the TexasConstitution, ratified in 1876, an accrued,but unliquidated personal injury cause ofaction was not considered to be a ‘‘vestedright’’ for purposes of the RetroactivityClause. Gandy, 925 S.W.2d at 706. Thisreasoning applies with special force to theRobinsons’ as-applied challenge, becauseat common law Mr. Robinson’s claimswould not have survived his death. Hisclaims exist today only by virtue of stat-utes. The framers of the Texas Constitu-tion would have not believed that therewould be a settled expectation in allowingMrs. Robinson to continue to prosecutethese uncertain claims, either as Mr. Rob-insons’s personal representative or deriva-tively through a statutorily created wrong-ful death action.

The Court recognizes this historical dis-connect, yet dismisses it in a single sen-tence, stating simply that ‘‘[t]he rights pro-tected by the constitutional prohibitionagainst retroactive laws are no more limit-ed to those recognized at the time theprohibition was adopted than are therights protected by due course of law.’’335 S.W.3d 126. A court should be cau-tious in providing new protections forrights that were not part of the sphere ofrights contemplated by the democratic in-stitutions that enacted the constitution.See McDonald v. City of Chicago, ––– U.S.––––, 130 S.Ct. 3020, 3051–53, 177 L.Ed.2d894 (2010) (Scalia, J., concurring) (criticiz-ing the dissent’s conceptual framework to‘‘ ‘do justice to [the Due Process Clause’s]urgent call and its open texture’ by exer-cising the ‘interpretive discretion the latter


embodies’ ’’ and to hold that the Clauseencompasses ‘‘new freedoms the Framerswere too narrow-minded to imagine’’(quoting Id., ––– U.S. ––––, 130 S.Ct. at3099–100 (Stevens, J., dissenting))).

The right to file a cause of action is notan entitlement to enforce the allegedclaim, but a ‘‘mere expectation’’ subject tonumerous contingencies. Ex parte Abell,613 S.W.2d at 261–62; Mellinger, 3 S.W.at 252–53. A plaintiff’s ultimate recoveryis contingent upon more than just successat trial. For example, it is contingentupon finding—and serving with process—the right defendant, who may be an inac-cessible foreign defendant, or, as in thiscase, may be a corporation long since outof business. See, e.g., TEX.R. CIV. P. 103–109a (discussing methods of service);GFTA Trendanalysen B.G.A. HerrdumGMBH & Co., K.G. v. Varme, 991 S.W.2d785, 785 (Tex.1999) (per curiam) (holdingspecial appearance by foreign corporationdid not waive challenge to jurisdiction). Aplaintiff’s recovery may be contingentupon following particular pretrial proce-

dures, such as the filing of an expert re-port or providing discovery. See TEX. CIV.

PRAC. & REM.CODE § 74.351 (requiring theservice of an expert report by the plaintiffin a health care liability claim and demand-ing dismissal of the claim if the report isnot timely served); Cire v. Cummings, 134S.W.3d 835, 841–42 (Tex.2004) (holdingthat ‘‘death penalty’’ sanctions of dismiss-ing plaintiff’s claim was warranted becauseof plaintiff’s failure to produce audiotapesthat would have proved or disproved plain-tiff’s legal malpractice claims). Any in-formed client knows that winning a law-suit, even a seemingly ‘‘open and shut’’case, is never certain, particularly whenmultiple defendants and multiple productsmay have caused the same injury, and noreasonable person has a ‘‘settled expecta-tion’’ of achieving monetary recovery onceshe discovers a harm inflicted upon her.

Rather, I would hold, consistent with thejurisprudence of the United States Su-preme Court 8 a majority of the federalcourts of appeals,9 a number of other

8. See, e.g., Landgraf v. USI Film Prods., 511U.S. 244, 272, 114 S.Ct. 1483, 128 L.Ed.2d229 (1994) (recognizing that the ‘‘constitu-tional impediments to retroactive civil legisla-tion are now modest’’); see also Hochman, 73HARV. L.REV. at 717 & n.135 (‘‘[T]he Court hasmany times sustained the application of aretroactive statute to an accrued cause ofaction.’’ (citing Louisville & Nashville R.R. v.Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed.297 (1911))).

9. Hammond v. United States, 786 F.2d 8, 12(1st Cir.1986) (‘‘The question whether therights asserted in plaintiff’s state-law causesof action are ‘vested’ cannot be answered bylooking to see whether suit had already beenfiledTTTT No person has a vested interest inany rule of law [and] this is true after suit hasbeen filed and continues to be true until afinal, unreviewable judgment is obtained.’’(citations and quotations omitted)); In reTMI, 89 F.3d 1106, 1115 n. 9 (3d Cir.1996)(distinguishing cases holding accrued causesof action to be vested rights, calling them

‘‘contrary to current federal constitutionalprecedent that finds no vested right in a tortcause of action before final judgment’’); Zer-an v. Am. Online, Inc., 129 F.3d 327, 335 (4thCir.1997) (‘‘No person has a vested right in anonfinal tort judgmentTTTT’’); Arbour v. Jen-kins, 903 F.2d 416, 420 (6th Cir.1990) (quot-ing Sowell); Konizeski v. Livermore Labs, (Inre Consol. U.S. Atmospheric Testing Litig.),820 F.2d 982, 989 (9th Cir.1987) (quotingHammond ); Grimesy v. Huff, 876 F.2d 738,743–44 (9th Cir.1989) (reviewing vestedrights cases under a Fifth Amendment takingsanalysis); Taxpayers for the Animas–La PlataReferendum v. Animas–La Plata Water Conser-vancy Dist., 739 F.2d 1472, 1477–78 (10thCir.1984) (holding that ‘‘inchoate’’ rights,such as the right to pursue legal remedies arenot ‘‘vested’’ for purposes of the Coloradostate and federal constitutions); Salmon v.Schwarz, 948 F.2d 1131, 1143 (10th Cir.1991)(quoting Arbour and Sowell ); Sowell v. Am.Cyanamid Co., 888 F.2d 802, 805 (11th Cir.1989) (‘‘The fact that the statute is retroactivedoes not make it unconstitutional [because] a


states,10 and a majority of the courts of appeals to address the issue in this state,11

legal claim affords no definite or [enforce-able] property right until reduced to a finaljudgment.’’); see also Lunsford v. Price, 885F.2d 236, 240–41(5th Cir.1989) (holding theapplicability of a statute to pending claimswas not manifestly unjust); Garcia v. Wyeth–Ayerst Labs., 385 F.3d 961, 968 (6th Cir.2004)(noting that Michigan statute of repose, which‘‘prevent[s] causes of action from accruing’’did not violate retroactivity provisions of thefederal constitution); Symens v. SmithKlineBeecham Corp., 152 F.3d 1050, 1056 n. 3 (8thCir.1998) (noting that federal regulations,which may preempt state law claims wouldapply to plaintiffs’ tort and implied warrantyclaims ‘‘because plaintiffs had no vestedrights in these unasserted claims at the time[the] preemption was modified’’ (citing Land-graf, 511 U.S. at 269, 273, 114 S.Ct. 1483)).But see Davis v. Blige, 505 F.3d 90, 103 (2dCir.2007) (recognizing, in a copyright caseapplying patent law, that a retroactive assign-ment destroys an owner’s ‘‘valuable and vest-ed right to enforce her claim’’); Hoyt MetalCo. v. Atwood, 289 F. 453, 454–55 (7th Cir.1923) (deciding whether a judgment is to beaccorded the status of a vested right andstating ‘‘[t]hat an accrued cause of action is avested property right is well settledTTTT Cer-tainly a judgment is a vested propertyright.’’); de Rodulfa v. United States, 461 F.2d1240, 1257 (D.C.Cir.1972) (indicating that ‘‘avested cause of action, whether emanatingfrom contract or common law principles, mayconstitute property beyond the power of thelegislature to take away,’’ but not so holdingbecause no cause of action—interference withcontract—existed in the case (emphasis add-ed)).

10. I concede that a majority of other states todirectly address the issue have held that anaccrued, yet unliquidated cause of action is a‘‘vested right’’ under either retroactivity ordue process analyses. However, a number ofother states provide a more nuanced view.For example, Colorado, one of the jurisdic-tions whose constitution also includes a pro-hibition on retroactive legislation, has heldthat a ‘‘vested right’’ is ‘‘one that is not depen-dent on the common law or statute but in-stead has an independent existence.’’ In reEstate of DeWitt, 54 P.3d 849, 853 (Colo.2002). The Colorado Supreme Court woulddetermine this ‘‘independent existence’’ bybalancing: ‘‘(1) whether the public interest is

advanced or retarded; (2) whether the statutegives effects to or defeats the bona fide inten-tions or reasonable expectations of the affect-ed individuals; and (3) whether the statutesurprises individuals who have relied on acontrary law.’’ Id. Nonetheless, the court,and the state’s lower courts, do not recognizethat an accrued cause of action is a vestedright per se. City of Greenwood Vill. v. Pets.for the Proposed City of Centennial, 3 P.3d427, 445–46 (Colo.2000) (‘‘[C]ontemporaryprecedent also demonstrates that expectationsof parties to litigation are not equivalent tovested rights.’’); see also Miller v. Brannon,207 P.3d 923 (Colo.App.2009) (‘‘A vested rightmust be a contract right, a property right, ora right arising from the transaction in thenature of a contract which has become per-fected to the degree that it is not dependenton the continued existence of the statute orcommon law.’’ (emphasis added) (quotationsomitted)).

11. See Houston Indep. Sch. Dist. v. HoustonChronicle Publ’g Co., 798 S.W.2d 580, 589(Tex.App.-Houston [1st Dist.] 1990, writ de-nied); see also Walls v. First State Bank ofMiami, 900 S.W.2d 117, 122 (Tex.App.-Amar-illo 1995, writ denied) (holding that retroac-tive application of federal law shielding em-ployees of a financial institution for reportingsuspected wrongdoing was properly appliedto lawsuit for malicious prosecution and defa-mation that had been filed prior to the enact-ment of the law and stating that ‘‘only final,nonreviewable judgments will be accordedthe dignity of vested, constitutionally guardedrights, and a law will be deemed to have aprohibited retroactive effect only when it im-pairs those rights’’); Tex. Gas ExplorationCorp. v. Fluor Corp., 828 S.W.2d 28, 32 (Tex.App.-Texarkana 1991, writ denied) (‘‘A partyhas no vested right to a cause of action;neither the Constitution of the United Statesnor this state forbids the abolition of com-mon-law rights to attain a permissible legisla-tive objective.’’); Aetna Ins. Co. v. Richardelle,528 S.W.2d 280, 285 (Tex.Civ.App.-CorpusChristi 1975, writ ref’d n.r.e.) (noting thateven though a plaintiff’s cause of action hadaccrued against a minor child, the plaintiffcould not proceed because the Legislatureamended the statute to foreclose recoveryagainst children the defendant’s age and theplaintiff ‘‘had not acquired a ‘title TTT to the


that a cause of action becomes a ‘‘vestedright’’ for the constitutional retroactivityanalysis when it has reached a final deter-mination—that is, where it has been re-duced to an enforceable judgment in theplaintiff’s favor.12 As aptly put in an opin-ion of the Court of Appeals for the FirstDistrict:

A ‘‘vested right’’ implies an immediateright or entitlement—it is not an expec-tation or a contingencyTTTT Engrainedin the concept of vested rights is theidea of certaintyTTTT The filing of alawsuit in order to obtain relief or pur-sue a remedy is generally held not to

create or destroy vested rights; thetriggering event for the vesting of aright is the resolution of the controversyand the final determination—not the fil-ing of the suit.

Houston Indep. Sch. Dist. v. HoustonChronicle Publ’g Co., 798 S.W.2d 580, 589(Tex.App.-Houston [1st Dist.] 1990, writdenied).

This rule is most consistent with theunderstanding of vested property rights atthe time of the ratification of the 1876Constitution. It is consistent with oursubsequent interpretation of the words ofthe Retroactivity Clause.13 It is consistent

present or future enforcement of a demand’ ’’(quotations omitted)); Satterfield v. CrownCork & Seal Co., 268 S.W.3d 190, 221–41(Tex.App.-Austin 2008, no pet.) (Law, C.J.,dissenting) (noting that the plaintiffs had novested right in the successor liability remedyagainst Crown because vested rights are ‘‘cer-tain and immediately enforceable,’’ the suc-cessor liability theory does not create a causeof action, and economic interests could beconsidered in police power balancing). Butsee Satterfield, 268 S.W.3d at 206–09 (holdingthat plaintiff in asbestos suit had vested rightsin accrued cause of action).

12. The Open Courts Clause of the Texas Con-stitution, not at issue in this case, may imposelimitations on the extent to which unliquidat-ed claims may be barred. TEX. CONST. art. I,§ 13; Sax v. Votteler, 648 S.W.2d 661, 665–66(Tex.1983) (holding that the ‘‘right to bring awell-established common law cause of actioncannot be effectively abrogated by the legisla-ture absent a showing that the legislative ba-sis for the statute outweighs the denial of theconstitutionally-guaranteed right of redress’’);see also Walters v. Cleveland Reg’l Med. Ctr.,307 S.W.3d 292, 295 (Tex.2010).

13. JUSTICE MEDINA, citing Ex parte Abell andquoting Mellinger, alleges that the Retroactivi-ty Clause ‘‘goes beyond federal guarantees ofproperty and due process.’’ 335 S.W.3d 126(Medina, J., concurring). While Abell recog-nized that proposition, it did so while simulta-neously recognizing that ‘‘[i]n practice TTT

retroactive lawmaking has not been viewed asthe gross abuse of power once assumed.’’ Exparte Abell, 613 S.W.2d at 259–60. Further,

commentators and jurists from other stateshave more recently recognized that specificretroactivity clauses should not be read overlybroadly. See, e.g., 1 GEORGE D. BRADEN, THE

CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED

AND COMPARATIVE ANALYSIS 58 (1977) (‘‘The otherprohibition concerning ‘retroactive laws’seems to spring from a general suspicion re-garding all retroactive laws of which the threementioned [ex post facto, bills of attainder,and laws impairing the obligation of con-tracts] were notorious examples. Early judi-cial restriction of the scope of ex post factolaws to retroactive criminal laws may haveprompted a desire to re-establish the broadersweep, which the prohibition had in theminds of some people, by general condemna-tion of retroactive laws.’’); see also id. at 59(discussing the Mellinger dicta also quoted byJUSTICE MEDINA and commenting that the au-thoring justice’s argument ‘‘excluded not onlythe specific guarantees of section 16 but thedue course of law limitation as well. Al-though he perceived the growing scope of dueprocess of law at the time of his opinion,Justice Straton could not have foreseen itsremarkable subsequent developmentTTTT

Thus, it has been said that laws are retroac-tive in the sense of section 16 only when theycontravene another specific prohibition of theConstitution.’’); Bryant Smith, RetroactiveLaws and Vested Rights, 5 TEX. L.REV. 231(1926) (noting that, in most states at the time,the explicit retroactive law provisions in otherstates’ constitutions were coterminous withdue process). Regardless of whether the Ret-roactivity Clause in section 16 deserves abroader read than just due process, there is


with our case law and the great weight ofcourt of appeals opinions. And it is morepredictable and avoids confusion and ambi-guity when the Legislature attempts toconstitutionally craft a law affecting pastconduct.

This Court’s first significant discussionof retroactivity occurs in Mellinger v. Cityof Houston, 68 Tex. 37, 3 S.W. 249 (1887).The City of Houston sued to recover taxeson property that would otherwise havebeen barred by a subsequently repealedstatute of limitations. The Court ruledthat the statute was not to be appliedretroactively and thus did not specificallydecide whether Mellinger had a vestedright that would be violated by retroactiveapplication of the law. Id. at 251–52. Itthen stated that ‘‘an action barred by thestatute of limitations was forever barred’’and explained that a law may be unconsti-tutionally retroactive ‘‘if a statute of limita-tions applied to existing causes barred allremedy, or did not afford a reasonableperiod for their prosecution; or if an at-tempt were made by law, either by impli-cation or expressly, to revive causes ofaction already barredTTTT’’ Id. at 253–55.Mellinger did not hold that an unaccruedcause of action was a vested right subjectto protection, but it did indicate that ashortening of the statute of limitationswould require a grace period to allowthose who had not filed their cause ofaction to do so before the new limitationsperiod would come into effect. Id.

Subsequent cases from this Court recog-nize that the Legislature cannot resurrectcauses of action that have already beenextinguished by retroactively lengtheningthe statute of limitations. E.g., BakerHughes, Inc. v. Keco R. & D., Inc., 12S.W.3d 1, 4 & n. 12 (Tex.1999); Wilson v.

Work, 122 Tex. 545, 62 S.W.2d 490, 490–91(1933) (per curiam). This rule makessense because ‘‘[t]o permit barred claimsto be revived years later would underminesociety’s interest in repose, which is one ofthe principal justifications for statutes oflimitations.’’ Baker Hughes, 12 S.W.3d at4. In other words, when the statute extin-guished a cause of action, a defendantreceived a vested right of repose barringthe extinguished claim.

In City of Tyler v. Likes, 962 S.W.2d 489(Tex.1997), a case upon which the Robin-sons principally rely, this Court held that amodification of the Tort Claims Act toprovide the city with sovereign immunityfrom the plaintiff’s common law tort claimswas not constitutionally retroactive. Itrecognized that the statute ‘‘affect[ed] aremedy’’ for the plaintiff, which usuallydoes not implicate the Retroactivity Clauseunless the ‘‘remedy is entirely takenaway.’’ Id. at 502 (citation omitted). Wenoted that ‘‘[t]he Legislature can affect aremedy by providing a shorter limitationsperiod for an accrued cause of action with-out violating the retroactivity provision ofthe Constitution if it affords a reasonabletime or fair opportunity to preserve aclaimant’s rights under the former law, orif the amendment does not bar all reme-dy.’’ Id. (citing Tex. Water RightsComm’n v. Wright, 464 S.W.2d 642, 649(Tex.1971); Mellinger, 3 S.W. at 254–55).Because the statute became effective sev-enteen months after her action accrued,the Court held that the plaintiff had areasonable time to preserve her rights,and thus the statute was not unconstitu-tional as applied. Id. Likes emphasizes(as discussed further below) that wherethe legislation affects the plaintiff’s reme-dy without entirely taking it away, the

nothing in the text of the Constitution to sug-gest that it should apply to contingent expec-

tancies such as exist in this case.


legislation is not unconstitutionally retro-active. Id.

Finally, this Court has specifically heldthat the Mellinger retroactivity exception,requiring that a party receive reasonabletime to preserve its rights, which was re-lied on in Likes, has an exception itself.In Owens Corning v. Carter, 997 S.W.2d560 (Tex.1999), the Court upheld a retroac-tive application of an amended borrowingstatute against a constitutional challenge.At the time the lawsuit underlying the casewas filed, Texas’s borrowing statute pro-vided that a non-Texan who was injured ina foreign state could bring an action inTexas, even if the limitations period in theplaintiff’s home state had run, so long asthe action was begun within the time pro-vided by Texas law. Id. at 565; cf. Igalv. Brightstar Info. Tech. Grp., Inc., 250S.W.3d 78, 90–91 (Tex.2008) (holding thatres judicata bars relitigation of administra-tively determined facts and distinguishinga rule where ‘‘a claimant whose action isprecluded by limitations in one state courtmay still be able to pursue the same actionin a different state with a longer limita-tions period’’). In early 1997, while theplaintiffs’ lawsuits were pending, the Leg-islature amended the statute to require,among other things, that the action is be-gun in Texas within the time provided bothby Texas law and the law of the foreignstate in which the wrongful act, neglect, ordefault took place. Carter, 997 S.W.2d. at572 (citing TEX. CIV. PRAC. & REM.CODE

§ 71.031(a)(3)). The plaintiffs challengedthe law as unconstitutionally retroactive,and we rejected that challenge. First, werecognized that the plaintiffs did not haveany settled expectations in the continuanceof the current law—the limitations period.Second, we noted that ‘‘requiring a graceperiod for otherwise time-barred claimswould defeat the very purpose of the bor-rowing statute: a plaintiff should not beable to gain greater rights than he would

have in the state where the cause of actionarose and where he lives simply by bring-ing suit in Texas.’’ Id. at 573. In otherwords, even if the statute of limitations‘‘grace period’’ rule articulated in Melling-er were to apply, because Alabama plain-tiffs applying Alabama law had no expecta-tion in the continuation of the borrowingstatute, ‘‘such concerns play a minimal roleand do not justify the application of agrace period.’’ Id. (citing In re TMI, 89F.3d 1106, 1116 (3d Cir.1996)).

This Court has recognized that contin-gencies, future expectations, and mererules of law do not constitute vestedrights. We have upheld retroactivity chal-lenges only when it interferes with a finaljudgment, involved the vested parent-childrelationship, or when the statute attemptsto revive a cause of action previouslybarred by the statute of limitations. E.g.,Milam County, 54 Tex. at 168; In re A.V.,113 S.W.3d 355, 361 (Tex.2003); BakerHughes, 12 S.W.3d at 5. Otherwise, wehave held on many occasions that laws,even those that explicitly apply retroac-tively, do not violate the RetroactivityClause in article 1, section 16. See, e.g.,David McDavid Nissan, 84 S.W.3d at 219–20; Carter, 997 S.W.2d at 573; Likes, 962S.W.2d at 502; Barshop, 925 S.W.2d at634; Ex parte Abell, 613 S.W.2d at 262;Exxon Corp. v. Brecheen, 526 S.W.2d 519,525 (Tex.1975); McCain, 284 S.W.2d at900; City of Dallas v. Trammell, 129 Tex.150, 101 S.W.2d 1009, 1012–13 (1937).

The Robinsons’ expectation that theycould recover damages against CrownCork as one of the numerous defendants intheir lawsuit was low at the time Mr.Robinson’s common law causes action ac-crued. Numerous contingencies surround-ed their litigation, not the least of whichwere the identity of the potential tortfea-sors and proving causation against Mundet


from among nine other defendants.14 Ifthey knew that Mundet was one of theparties responsible for producing asbestosthat Mr. Robinson was exposed to, it isunlikely that they knew that Mundet hadbeen bought by Crown Cork decades prior.This is not a situation where the obli-gations of two parties are identified bycontract, where the government seeks tointerfere with the parent-child relation-ship, or a party seeks to resurrect a claimlong extinguished by a statute of limita-tions. Our case law is consistently hesi-tant to void statutes outside those catego-ries as retroactive, and this is not an areainto which our jurisprudence should ex-pand.15

Finally, a ‘‘brighter-line’’ view providesmore certainty and predictability andavoids confusion and ambiguity. Causesof action accrue when claimants are onnotice of their injury and have the oppor-tunity to seek a judicial remedy, when theinjury occurs, or at the death of a promi-sor. Quigley v. Bennett, 227 S.W.3d 51, 58(Tex.2007); Provident Life & AccidentIns. Co. v. Knott, 128 S.W.3d 211, 221(Tex.2003). Certainly, these accruals al-most always occur prior to the filing of alawsuit (otherwise the claim would not beripe). Therefore, accepting the Court’sposition that a right to file a lawsuit is avested right would, in effect, preclude theLegislature from taking any action to mod-ify or restrict a cause of action for somelawsuits that had not even been filed yet.

It would further lead to unnecessary un-certainty and confusion.

The Robinsons did not have a vestedright in their accrued causes of actionwhen Mr. Robinson was diagnosed withmesothelioma. At most, they had contin-gent belief that they might be able torecover against Crown Cork or the otherdefendants. At the time Mr. Robinson’scause of action accrued, the Robinsons hadnot taken any action in reliance on the lawat the time, and they had no entitlement tothe law as it existed. Even after they filedtheir action and received a partial sum-mary judgment that Crown Cork was lia-ble as a successor corporation, they had anunliquidated interest in a personal injurytort claim that was not recognized as aproperty right—vested or otherwise—atcommon law. The expectation further de-teriorated when Mr. Robinson passedaway, and Mrs. Robinson asserted newstatutory survival and wrongful deathclaims. I would hold that, when the Legis-lature limited recovery for asbestos claimsonly against innocent successor corpora-tions that had caused no injury to claim-ants, the Legislature did not deprive theRobinsons of a vested right of actionagainst Crown Cork, and thus Chapter 149is not unconstitutionally retroactive as ap-plied to the Robinsons. The Robinsonsare not foreclosed, however, from goingforward with their claims against otherentities, consistent with the Act’s limita-tions on recovery.

14. The causation question to the jury mayhave listed ten potential defendants, the num-ber remaining at the time Crown Cork’s par-tial summary judgment motion was granted.

15. JUSTICE MEDINA argues that the final judg-ment rule is inappropriate because ‘‘it is theright to sue itself—the lawsuit—that is beingtaken away, not the final outcome.’’ 335S.W.3d 126 (Medina, J., concurring). On thecontrary, the Robinsons sued Crown Cork.There were pleadings, discovery, and motion

practice. Crown Cork had to prove that itwas entitled to the Chapter 149 defense,which it did through summary judgment. Infact, if Crown Cork’s prior payout had beenbelow Mundet’s fair value, the Robinsonscould recover against Crown Cork, but thatquestion must be established in the lawsuit.To the extent there is an expectation to fileand prosecute a cause of action (and not torecover on a claim), that expectation wassatisfied in this case.


2. Police Power Balancing

The Robinsons argue that there is noroom for a balancing of interests in theretroactivity analysis. They contend thatif a right is vested, it cannot be affected byretroactive legislation.16 Regardless ofwhether the ‘‘vested rights’’ threshold ex-ists, a balancing of interests and expecta-tions is an integral part of retroactivityanalysis in Texas jurisprudence, the juris-prudence of other states, and commenta-tors and scholars in this area. Althoughthe Court also balances interests, much inthe same way I believe our jurisprudencedemands that we balance interests pursu-ant to the state’s police power, the Court’sanalysis overlooks a few critical points.

Courts carefully recognized that a retro-active law affecting vested rights maynonetheless be constitutional if the over-riding public purpose of the act and theLegislature’s legitimate exercise of its po-lice power outweigh the interests or expec-tations of the affected party. E.g., Bar-shop, 925 S.W.2d at 633–34. As JusticeOliver Wendell Holmes, Jr. recognized inthe context of a takings suit based on astatute retroactively preventing a miningcompany exercising its contractual rightsto mine coal under a house:

Government hardly could go on if tosome extent values incident to propertycould not be diminished without payingfor every such change in the generallaw. As long recognized, some values

are enjoyed under an implied limitationand must yield to the police power. Butobviously the implied limitation musthave its limits, or the contract and dueprocess clauses are gone.

Pa. Coal Co. v. Mahon, 260 U.S. 393, 413,43 S.Ct. 158, 67 L.Ed. 322 (1922); see alsoIn re Marriage of Bouquet, 16 Cal.3d 583,128 Cal.Rptr. 427, 546 P.2d 1371, 1376(1976) (noting that vested rights may beimpaired when ‘‘reasonably necessary tothe protection of the health, safety, morals,and general well being of the people’’);Phillips v. Curiale, 128 N.J. 608, 608 A.2d895, 902 (1992); Hochman, 73 HARV. L.REV.

at 697 (advocating the abrogation of the‘‘vested rights’’ concept and instead analyz-ing U.S. Supreme Court jurisprudence onretroactivity balancing the nature of thepublic interest served, the extent to whichthe statute modifies the asserted pre-en-actment right, and the nature of the rightwhich the statute alters).

In considering the balancing test to beapplied this case, the court of appeals bal-anced the proper exercise of the policepower (weighing presumably not only thevalidity of the exercise, but the importanceas well) against the ‘‘detrimental impact onplaintiffs such as the Robinsons,’’ notingthat the statute was narrowly tailored toprotect the most innocent corporations butstill ‘‘leaving the pool of potential [asbes-tos] defendants as large as possibleTTTT’’251 S.W.3d at 532–33. The Court, on the

16. The Robinsons also argue that article I,section 29 of the Texas Bill of Rights, compelsthat result. I agree with the Court that sec-tion 29 does not determine whether and howthe substantive portions of the Bill of Rightsapply. 335 S.W.3d 126. Furthermore, sec-tion 29 is generally cited only for the proposi-tion that courts have the power to declarelaws unconstitutional. 1 BRADEN at 86–87,cited in Oakley v. State, 830 S.W.2d 107, 110–11 (Tex.Crim.App.1992); cf. Travelers’ Ins.Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007,1011 (1934) (citing to section 29, among other

things, to depart from the U.S. SupremeCourt’s view and declare unconstitutional alaw impairing the obligation of contracts); seealso City of Beaumont v. Bouillion, 896S.W.2d 143, 148–49 (Tex.1995) (‘‘Section 29has been interpreted as follows: any provi-sion of the Bill of Rights is self-executing tothe extent that anything done in violation of itis void.’’); Republican Party of Tex. v. Dietz,940 S.W.2d 86, 89–91 (Tex.1997) (analyzingsection 29 and holding that the Texas Bill ofRights protects against government, not pri-vate, conduct).


other hand, balances: (1) the nature andstrength of the public interest served bythe statute as evidenced by the Legisla-ture’s factual findings; (2) the nature ofthe prior right impaired by the statute;and (3) the extent of the impairment. 335S.W.3d 126. Using this test, the Courtdetermines that Chapter 149 is unconstitu-tionally retroactive as applied to the Rob-insons.

The Court asserts that what ‘‘constitutesan impairment of vested rights is too muchin the eye of the beholder to serve as atest for unconstitutional retroactivity TTT

[and there is] a deep division over whethera retroactive restriction on a cause of ac-tion impairs vested rights.’’ 335 S.W.3d126. So the Court vanquishes the vestedrights jurisprudence because it is too hardto decide and it believes some cases apply-ing it in the past were inconsistent. Whatareas of jurisprudence that span two cen-turies are not subject to the same criti-cisms? No one who has raised childrendoubts the statement that bathing a babyis challenging and risky and can be atough chore, but it must be done. TheCourt throws out the baby it once em-braced along with the bath water. It willcome as no surprise that the new balanc-ing test the Court establishes for evaluat-ing retroactive legislation will be fraughtwith at least as many similar challenges,but have no precedents for guidance. Thebalancing test in Texas retroactivity juris-prudence is, candidly, a new baby in newbath water. Certainly, there are limitsimposed by the Constitution on legislativepower (as well as executive and judicialauthority), but as Justice Scalia insightful-ly explained about a balancing test underthe Commerce Clause of the U.S. Consti-tution:

The problem is that courts are less wellsuited than Congress to perform thiskind of balancing in every case. Theburdens and the benefits are always in-

commensurate, and cannot be placed onthe opposite balances of a scale withoutassigning a policy-based weight to eachof them. It is a matter not of weighingapples against apples, but of decidingwhether three apples are better than sixtangerines. Here, on one end of thescale (the burden side) there rests acertain degree of suppression of inter-state competition in borrowing; and onthe other (the benefits side) a certaindegree of facilitation of municipal bor-rowing. Of course you cannot decidewhich interest ‘‘outweighs’’ the otherwithout deciding which interest is moreimportant to you. And that will alwaysbe the case. I would abandon the TTT

balancing enterprise [used in dormantcommerce clause cases] altogetherTTTT

Dep’t of Revenue of Ky. v. Davis, 553 U.S.328, 359, 128 S.Ct. 1801, 170 L.Ed.2d 685(2008) (Scalia, J., concurring in part) (em-phasis added).

Assuming that the Robinsons’ accruedbut unliquidated cause of action for per-sonal injury is a vested right under theRetroactivity Clause, I consider whetherthe Legislature’s exercise of its generalpolice power outweighs the private inter-ests at issue.

a. The Balancing Test to be Applied

We have not had the opportunity to fullydiscuss the contours of the police powerexception vis-a-vis a retroactivity chal-lenge. In Barshop v. Medina Under-ground Water Conservation District, weupheld the Edwards Aquifer Act against aretroactivity challenge where landownersabove the Edwards Aquifer argued thatthe Act affected their vested right to with-draw unlimited amounts of water from theAquifer. 925 S.W.2d 618, 634 (Tex.1996).Without deciding whether rights togroundwater were vested rights, we stated


that because the authority was ‘‘requiredfor the effective control of the [aquifer] toprotect TTT life, TTT water supplies, theoperation of existing industries, and theeconomic development of the state’’ andthe aquifer itself was ‘‘vital to the generaleconomy and welfare of this state,’’ thatthe Retroactivity Clause in the Texas Con-stitution does not ‘‘absolutely bar the Leg-islature from enacting such statutes.’’ Id.(quoting Act of May 30, 1993, 73d Leg., R.S., ch. 626 §§ 1.01, 1.06(a), 1993 Tex. Gen.Laws 2355, amended by Act of May 29,1995, 74th Leg., R. S., ch. 261, 1995 Tex.Sess. Law Serv. 2505). In In re A.V., weupheld retroactive application of a statuteallowing the termination of parental rightsfor those who are incarcerated for an ex-tended period of time because the statehas a duty to protect the safety and wel-fare of its children, and ‘‘[t]his ‘valid exer-cise of the police power by the Legislatureto safeguard the public safety and welfare’is a recognized exception to the unconstitu-tionality of retroactive laws.’’ 113 S.W.3d355, 361 (Tex.2003) (quoting Barshop, 925S.W.2d at 633–34). In Lebohm v. City of

Galveston, we struck down a statute pro-viding the City of Galveston a completedefense for injury caused by defectiveroads, streets, sidewalks, or other publicplaces within the city limits, noting that‘‘[n]o broad public policy or general wel-fare considerations are advanced to justifythe charter provision as a reasonable exer-cise of police power [and w]e can think ofnone that could be advanced inasmuch asthe operational effect of the provision ex-tends only to the city limitsTTTT’’ 154 Tex.192, 275 S.W.2d 951, 955 (1955).

Other states, however, have created afuller rubric for examining the balance be-tween the police power and the prohibitionagainst retroactive laws. Each formula-tion seems to balance the nature of thepublic interest articulated by the Legisla-ture, the extent to which the statute modi-fies or abrogates the vested right, the na-ture of the right the statute alters, and thefairness of the application of the new stat-ute.17 The Robinsons’ retroactivity chal-lenge is an as-applied challenge, and thusthe Robinsons must demonstrate that the

17. E.g., Phillips, 608 A.2d at 902 (articulatinga similar test balancing: ‘‘(1) the nature andstrength of the public interest served by thestatute, (2) the extent to which the statutemodifies or abrogates the asserted right, and(3) the nature of the right that the statutealters’’ and discussing whether the applica-tion of the statute would result in ‘‘manifestinjustice’’); Estate of DeWitt, 54 P.3d at 855(balancing the vested right against publichealth and safety concerns, the state’s policepowers to regulate certain practices, and oth-er public policy concerns, so long as there is arational relationship between the governmentinterest that is asserted and the retroactivelegislation); Marriage of Bouquet, 128 Cal.Rptr. 427, 546 P.2d at 1376 (examining ‘‘thesignificance of the state interest served by thelaw, the importance of the retroactive appli-cation of the law to the effectuation of thatinterest, the extent of reliance upon the for-mer law, the legitimacy of that reliance, theextent of actions taken on the basis of thatreliance, and the extent to which the retroac-

tive application of the new law would disruptthose actions’’); Reed v. Brunson, 527 So.2d102, 115–16 (Ala.1988) (eliminating co-em-ployee lawsuits, while noting that ‘‘[i]t is cer-tainly within the police power of the legisla-ture to act to enhance the economic welfareof the citizens of this state [by eliminating thecommon law cause of action] TTT in an at-tempt to eradicate or ameliorate what it per-ceives to be a social evil’’); Mergenthaler v.Asbestos Corp. of Am., 534 A.2d 272, 276–77(Del.Super.Ct.1987) (noting that the determi-nation of retroactivity ‘‘rests on subtle judg-ments concerning the fairness of applying thenew statute’’ and noting that the consider-ations of vested rights ‘‘may be moderated orovercome if the statute is in furtherance of thegeneral police power for concerns of public,health, morals, safety, or general welfare’’and holding retroactive application of work-ers’ compensation benefits to asbestos claim-ants who were exposed prior to coverage wasnot unconstitutionally retroactive).


statute is unconstitutional as it operates inpractice against them. See Tex. Mun.League, 74 S.W.3d at 381. Therefore, it isappropriate to balance the expectations theRobinsons lost with the enactment ofChapter 149 against the degree of harmsought to be protected by the legislativeenactment.

When considering the application of thepolice power, this case is a close one. Itdoes not involve the potential shortage ofwater for millions of people, Barshop, 925S.W.2d at 634, and it does not involve thestate’s duty as parens patriae to children,In re A.V., 113 S.W.3d at 361. But thereare five reasons that Chapter 149 was alegitimate exercise of the police power, asapplied to the Robinsons. The first threedemonstrate that the Robinsons’ expecta-tions in the continued state of the law, as-applied, are low. The second two demon-strate that the Legislature’s exercise ofthe police power was rational, justifiable,and reasonably limited.

First, at common law, Mr. Robinson’sclaims were not ‘‘property,’’ were not as-signable, and were extinguished when hepassed away. It is only by statute thatwrongful death claims continue to exist.The Legislature has broad authority tomodify rights it creates by statute.‘‘When a right or remedy is dependent ona statute, the unqualified repeal of thatstatute operates to deprive the party of allsuch rights that have not become vested orreduced to final judgment,’’ and ‘‘all suitsfiled in reliance on the statute mustceaseTTTT’’ Quick v. City of Austin, 7S.W.3d 109, 128 (Tex.1998). This Courthas further held that ‘‘[i]t is generally con-ceded that a right of action given by astatute may be taken away at any time,even after it has accrued and proceedingshave been commenced to enforce it.’’Nat’l Carloading Corp. v. Phoenix–ElPaso Exp., 142 Tex. 141, 176 S.W.2d 564,

568 (1944). Even assuming the Robinsons’acts of filing a lawsuit and receiving partialsummary judgment resulted in some vest-ed expectation, the Robinsons’ claims,based in common law negligence and prod-ucts liability, may continue only because ofthe statutory rights of survival, wrongfuldeath, and successor liability through cor-porate merger. Accordingly, the Legisla-ture retained discretion to modify the na-ture of their rights through Chapter 149’srestriction on the amount of total damagesrecoverable against Crown Cork.

Second, Chapter 149 does not interferewith a claim sounding in contract or aclaim for an injury to real or personalproperty, which was protected much morestringently at common law. E.g., Land-graf, 511 U.S. at 271, 114 S.Ct. 1483 (not-ing that the ‘‘largest category of cases inwhich [the Supreme Court of the UnitedStates has] applied the presumptionagainst statutory retroactivity has involvednew provisions affecting contractual orproperty rights, matters in which predict-ability and stability are of prime impor-tance’’). The Robinsons did not have anestablished relationship with Crown Cork(or even Mundet) with predetermined ex-pectations that may have vested upon theoccurrence of a contractual condition. Un-til this litigation, it is unlikely that theRobinsons even knew that Crown Corkwas a successor to Mundet, or that Mun-det manufactured asbestos products usedin the ships on which Mr. Robinson wasstationed. This weakens the expectancythe Robinsons may have had in their causeof action.

Third, Chapter 149, as applied, does notdeprive the Robinsons of their cause ofaction against Crown Cork, and it does notdeprive the Robinsons of real and substan-tial remedies for their alleged wrongs.The Robinsons sued twenty other defen-dants in this case and recovered approxi-


mately $850,000 from a number of thedefendants for their injuries. They al-leged that ‘‘[e]ach exposure to [asbestos-containing products] cause and/or contrib-uted to Plaintiffs’ injuries TTT’’ and ‘‘[t]heactions of each and every Defendant are aproducing and proximate cause of Plain-tiffs’ injuries and damages.’’ Thus, theRobinsons lost only the right to recoveragainst Mundet/Crown Cork, which hadreached its maximum payout under Chap-ter 149. But the statute did not impairtheir right to seek substantial recoveriesagainst other defendants, which were in-volved in the business of asbestos insula-tion for the same injuries to Mr. Robinson.There is no vested right in a remedy, andthe Legislature may retroactively modifyremedial laws, affect a court’s jurisdiction,or provide alternative procedures or reme-dies. See Tex. Mun. Power Agency v.Pub. Util. Comm’n, 253 S.W.3d 184, 198(Tex.2007); David McDavid Nissan, 84S.W.3d at 219; Ex parte Abell, 613 S.W.2dat 260; Mellinger, 3 S.W. at 254.18 Thiscase is a multi-defendant lawsuit where itis difficult to determine which asbestosproducts were the cause of Mr. Robinson’sinjuries.

Chapter 149 does not deprive the Robin-sons of any cause of action or prohibittheir right to sue any party. It simplycuts off recovery against innocent defen-dants at the point that the defendants havepaid out for asbestos-related liabilities thefair market value of the assets of the com-pany acquired. Importantly, Chapter 149does not make any defendants immune

from suit. Chapter 149 limits the remedyunder prescribed circumstances. It is notdisputed that if, for instance, Mundet’sassets, acquired by Crown Cork, had a fairmarket value of $1 billion, Crown Corkcould still be liable for damages in thissuit. But because Crown Cork’s asbestos-related liability payments exceeded the as-set value of Mundet, it had reached thestatutory limit for its liabilities as succes-sor to Mundet. Even assuming for thesake of argument that the removal of re-covery against one defendant in such a suitis not merely a change in remedy but adeprivation of a right, in this case theinfringement was not a complete bar to allrecovery for the wrongs alleged. Accord-ingly, the Robinsons were able to proceedagainst other defendants for the sameclaims based on admittedly the same inju-ry.

Fourth, the Legislature rationally drewChapter 149 to address a problem it per-ceived as very important—the effects onthe Texas economy and employment be-cause of the bankruptcy of companies thatnever manufactured, sold, or distributedasbestos-containing products. The asbes-tos litigation ‘‘crisis’’ had been well recog-nized in academic journals and even courtdecisions at the time the Legislature de-bated and enacted House Bill 4. E.g., Orsz-ag, 44 S. TEX. L.REV. at 1078–81; AmchemProds., Inc. v. Windsor, 521 U.S. 591, 598,117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)(‘‘ ‘The most objectionable aspects of as-bestos litigation can be briefly summa-rized: dockets in both federal and state

18. Courts have repeatedly recognized that astatute depriving a court of jurisdiction tohear a dispute does not implicate a vestedright. David McDavid Nissan, 84 S.W.3d at220; In re A.D., 73 S.W.3d 244, 249 (Tex.2002); see also Landgraf, 511 U.S. at 274, 114S.Ct. 1483 (recognizing that statutes that con-fer or oust jurisdiction are regularly appliedretroactively). If the mere right to sue were

the constitutionally protected interest, thenthe Robinsons would have it, and those whoseclaims were no longer justiciable in a court ofcompetent jurisdiction would not. Therefore,the right protected by the Retroactivity Clausemust truly be focused on the substance of theclaim—the actual recovery—rather than theright to get to a recovery.


courts continue to grow; long delays areroutine; trials are too long; the same is-sues are litigated over and over; transac-tion costs exceed the victims’ recovery bynearly two to one; exhaustion of assetsthreatens and distorts the process; andfuture claimants may lose altogether.’ ’’(quoting Judicial Conference Ad Hoc Com-mittee on Asbestos Litigation, Report tothe Chief Justice of the United States andMembers of the Judicial Conference of theUnited States, at 2–3 (Mar.1991))); Hum-ble Sand & Gravel, Inc. v. Gomez, 146S.W.3d 170, 203–04 (Tex.2004) (O’Neill, J.,dissenting) (recognizing the crisis and not-ing that ‘‘the solution to these problems islegislative, not judicial’’); Paul F. Roth-stein, What Courts Can Do in the Face ofthe Never–Ending Asbestos Crisis, 71MISS. L.J. 1, 1, 4–9 (2001) (describing the‘‘ever-expanding’’ crisis, and the filing ofclaims ‘‘[o]ver $20 billion and thirty bank-ruptcies later’’). Others examined the po-tential for unfairness when a larger corpo-ration’s assets became susceptible to thestress of asbestos liability from a long-since acquired subsidiary. As stated byone commentator:

[I]n asbestos litigation, courts have castaside the theory behind the [successorliability] doctrine. Instead of limitingthe successor corporation’s liability tothe market value of the acquired corpo-ration, or even to that value plus anyprofits generated by the acquisition,courts have allowed successors to besubjected to limitless liability[, which isa] runaway application of the successorliability doctrine.

Mark H. Reeves, Note, Makes Sense toMe: How Moderate, Targeted FederalTort Reform Legislation Could Solve theNation’s Asbestos Litigation Crisis, 56VAND. L.REV. 1949, 1972–73 (2003); seealso, e.g., Lester Brickman, The AsbestosLitigation Crisis: Is there a Need for anAdministrative Alternative?, 13 CARDOZO

L.REV. 1819, 1831–33 (1992) (recognizingthat the asbestos litigators invoked succes-sor liability laws ‘‘so as to reach into thedeeper pockets of the companies thatbought far smaller entities that manufac-tured asbestos-containing materials re-gardless of the culpability of the purchas-ing companies’’).

The Statement of Legislative Intentfiled by Representative Nixon recognizedan ‘‘unfairness’’ existing in corporatemerger law where a ‘‘larger successor caneasily be bankrupted by the asbestos-relat-ed liabilities it innocently received from amuch smaller predecessor with which itmerged may [sic] decades ago.’’ H.J. ofTex., 78th Leg., R.S. 6042, 6043 (2003) (HB4 Statement of Legislative Intent). TheStatement also recognized that ‘‘Corpora-tions actually in the asbestos business andtheir successors through merger havebeen financially drained by decades of liti-gation. As a result, nearly 70 such corpo-rations have sought protection throughbankruptcy. The cost in jobs and pensionbenefits, to cite just two examples, hasbeen substantial.’’ Id. at 6044. Thesefindings were recognized in the Housefloor during debate, and were codified intothe omnibus statute two years later thatreformulated the method in which asbestosclaims are litigated in Texas. See Act ofMay 19, 2005, 79th Leg., R.S., ch. 97,§ 1(b)-(h), 2005 Tex. Gen. Laws 169, 169–70 (codified at TEX. CIV. PRAC. & REM.CODE

§§ 90.001–.012). Protection of Texas’seconomy and jobs is certainly a rationalbasis for enacting legislation, and herethere is a sufficient reason for the Legisla-ture to enact the statute that it did.

Finally, the class of persons protectedby the legislation has a rational relation tothe legislative purpose of the legislation.The Legislature chose to relieve liabilityon ‘‘innocent successors,’’ companies thatdid not manufacture or sell asbestos, but


rather acquired a company that did. Andthe Legislature mediated the perceived un-fairness not by foreclosing a remedy alto-gether, but merely limiting the remedy tothe fair value of the acquired company’sassets. TEX. CIV. PRAC. & REM.CODE

§§ 149.001, .003. In this case, that is ex-actly what happened. Crown Cork’s totalliabilities for the asbestos sold and manu-factured by Mundet far exceeded Mundet’spresent-day fair value. Had Mundet nev-er been acquired by Crown Cork, its pay-outs for asbestos liability would have ex-ceeded its value as a going concern, itlikely would have been bankrupt, and, al-most certainly, no money would have re-mained to pay the Robinsons’ claims ifthey obtained a judgment against it. SeeIn re Joint E. & S. Dists. Asbestos Litig.,237 F.Supp.2d 297, 302–06 (E.D.N.Y.2002)(discussing the factual and proceduralbackground of the bankruptcy of the Man-ville Corporation, the establishment of theManville Trust following its bankruptcy topay asbestos claims, and its reformationonce it was discovered that the trust was‘‘deeply insolvent’’ and that beneficiarieswould not be able to be paid in full, or evenpaid at all). Crown Cork chose to acquireMundet through a statutory merger andnot through an asset purchase, but it re-mains the purview of the Legislature tomodify the legal effect of continuing liabili-ty of such mergers in Texas to avoid theruin of businesses possessing assets thathad nothing to do with asbestos productionor manufacture. Importantly, the legisla-tion restricts neither the right nor theremedy of plaintiffs who prove that CrownCork itself caused them injury; it onlyaddresses imputed successor liability.

In short, for the reasons articulatedabove, the Robinsons’ interest in their ac-crued, but unliquidated cause of action, islow. Their vested expectancy, if any, isminimal. Their right of recovery for theinjuries complained of was not foreclosed.

And their relation to Crown Cork wasattenuated. The public interest in the leg-islation, and its retroactivity, is moderate.The Legislature acted in response to aknown litigation crisis and acted with areasonable and narrowly tailored responsebased on the current climate. Individualsmay or may not personally believe in thewisdom of the particular legislation, but itis not our province to second-guess legisla-tion because we do not agree with itspolicy. See McIntyre v. Ramirez, 109S.W.3d 741, 748 (Tex.2003).

b. A Critique of the Court’s Test

Although I disagree with the Court’sanalytical framework in arriving at itsthree-factor balancing test and the un-foundedly rigorous legal standards it ap-plies, I do not wholesale disagree with thecategories it has set up to determinewhether a retrospective law is unconstitu-tionally retroactive. However, the Court’sapplication of the law to the facts in thiscase creates more difficulties for the Leg-islature and the courts of our state inreviewing retroactive laws, and createssignificant and unnecessary impedimentsto the Legislature’s ability to correct lawand make beneficial legislative changes inthe future.

First, I disagree with the ‘‘compellingreason’’ standard applied by the Court.Nothing in our precedent, or any case law,requires such a heightened review of ret-roactive legislation. The Court repeatedlymentions the heavy presumption againstretroactive legislation, but the presump-tion falls away in this case. The presump-tion is removed when a legislature ‘‘itselfhas affirmatively considered the potentialunfairness of retroactive application anddetermined that it is an acceptable price topay for the countervailing benefits.’’Landgraf, 511 U.S. at 272–73, 114 S.Ct.1483. Not only did the Legislature ‘‘con-


sider the potential unfairness’’ in this case,it voted to apply Chapter 149 retroactivelyby a supermajority. The Court’s pointthat we should view fully retroactive legis-lation with skepticism is well taken; how-ever, the presumption against retroactivityis unnecessary when the Legislature ex-pressly concludes that the statute is to beapplied retroactively. Id.; accord Lock-heed Corp. v. Spink, 517 U.S. 882, 896–97,116 S.Ct. 1783, 135 L.Ed.2d 153 (1996)(‘‘[When] the temporal effect of a statute ismanifest on its face, ‘there is no need toresort to judicial default rules,’ and inquiryis at an end.’’ (quoting Landgraf, 511 U.S.at 280, 114 S.Ct. 1483)); Tello v. DeanWitter Reynolds, Inc., 410 F.3d 1275,1281–82 (11th Cir.2005) (‘‘[The] presump-tion and analysis, however, are unwarrant-ed when Congress states its unambiguousintention that the statute apply retroac-tively to pre-enactment conductTTTT’’).Because it is for the Legislature to initiallydetermine whether the benefits of retroac-tive legislation outweigh the detriments (atleast to the statute as a whole), we are notcommanded to review that decision to de-termine whether their justification was‘‘compelling.’’

Second, the Court’s evaluation of theRobinsons’ interest seems to be focused onits pretrial evaluation of not only the exis-tence of the Robinsons’ claims, but theirstrength. The Court argues that the Rob-insons’ claims have ‘‘a substantial basis infact’’ and that their claims are ‘‘maturetort[s], [such that] recovery is more pre-dictable.’’ 335 S.W.3d 126. I would notrequire courts in this state to evaluateplaintiffs’ claims or defendants’ defenses,under the Retroactivity Clause on whetherthe parties are likely to win or their claimshave a ‘‘substantial basis in fact.’’ As anyexperienced lawyer will acknowledge, thestrength of a claim and the likelihood ofsuccess in litigation may be separate andindependent things. This consideration is

unwieldy, suggesting that the Legislaturecan enact retroactive legislation affectingsubstantive rights so long as there is achance that it will not matter, at the end ofthe day.

Third, the statute does not affect settledexpectations to the degree alleged by theCourt. The Court alleges that the statutewill affect the recovery ‘‘to which the Rob-insons are entitled,’’ once again presumingthat the Robinsons’ claims against CrownCork will be successful. 335 S.W.3d 126.As discussed above, the Robinsons had nopre-tort contact with Crown Cork, and hadno settled expectation that Mundet wouldbe acquired by a richer company able topay for Mundet’s debts.

Fourth, the Court penalizes the Legisla-ture because the legislation does not con-tain expressed ‘‘findings to justify Chapter149.’’ 335 S.W.3d 126. The Court doesnot consider the well-known facts aboutthe asbestos crisis, Crown Cork’s financialstake, subsequently codified legislativefindings, or the possibility that other busi-nesses may be subjected to financial ruin,as these facts were not included in theactual statutory language in House Bill 4.While I agree that such statutory findingsare most helpful in determining legislativeintent, United States v. Lopez, 514 U.S.549, 562–63, 115 S.Ct. 1624, 131 L.Ed.2d626 (1995) (concerning the CommerceClause), I am aware of no Texas case thatrequires them. And, in fact, if the Legis-lature were to be so required for every billin which their police power may be chal-lenged, certainly the legislative processwould be significantly burdened. Rationalbasis review does not require the Legisla-ture to provide any particular purpose;the law will be upheld ‘‘if there is anyconceivable state of facts which would sup-port it.’’ Carmichael v. S. Coal & CokeCo., 301 U.S. 495, 509, 57 S.Ct. 868, 81L.Ed. 1245 (1937). The law may be valid


even if the Legislature did not consider thevalid purposes, but so long as the purpose‘‘may have been considered to be true.’’Nordlinger v. Hahn, 505 U.S. 1, 11, 112S.Ct. 2326, 120 L.Ed.2d 1 (1992) (citationsomitted).

Thus, I believe it is imprudent to aban-don our vested rights jurisprudence, andas applied, the Robinsons’ do not havevested rights in their causes of actionagainst Crown Cork. Even if the Robin-sons’ claims are vested rights, I would holdthat, on balance, the Legislature’s exerciseof police power outweighs the Robinsons’rights, and thus Chapter 149 does notviolate article I, section 16 of the TexasConstitution.

B. Special Law

Because the Court determines thatChapter 149 is unconstitutionally retroac-tive as applied to the Robinsons, it doesnot address the Robinsons’ second argu-ment, that Chapter 149 is an unconstitu-tional ‘‘special law.’’ I would hold that it isnot.

Article III, section 56(b) of the TexasConstitution provides that ‘‘where a gener-al law can be made applicable, no local orspecial law shall be enacted.’’ TEX. CONST.

art. III, § 56(b). A ‘‘special law’’ is astatute that ‘‘relates to particular personsor things of a class,’’ rather than the classas a whole. Clark v. Finley, 93 Tex. 171,54 S.W. 343, 345 (1899) (emphasis added),cited in Lucas v. United States, 757S.W.2d 687, 700 (Tex.1988); see also FordMotor Co. v. Sheldon, 22 S.W.3d 444, 456(Tex.2000) (defining a ‘‘special law’’ as onethat ‘‘impermissibly distinguishes between

groups on some basis other than geogra-phy’’ (citing Tex. Boll Weevil EradicationFound. v. Lewellen, 952 S.W.2d 454, 465(Tex.1997))). The prohibition on speciallaws was added to the Texas Constitutionof 1876 as one of many practical answersto the prevalent abuse of legislative andexecutive power that occurred in Texasfollowing the Reconstruction. A.J. Thom-as, Jr. & Ann Van Wynen Thomas, TheTexas Constitution of 1876, 35 TEX. L.REV.

907, 915 (1957). In one session of thepost-Reconstruction legislature five hun-dred special laws were passed. Id. Sec-tion 56 was thus seen to prevent ‘‘logroll-ing,’’ 19 to ensure against the granting ofspecial privileges, and to prevent lawmak-ers from trading votes ‘‘for the advance-ment of personal rather than public inter-est.’’ Miller v. El Paso Cnty., 136 Tex.370, 150 S.W.2d 1000, 1001 (1941); Shel-don, 22 S.W.3d at 456.

In the early twentieth century, theCourt developed a test for reviewingwhether a law providing a privilege to aparticular class is in actuality a veiled at-tempt to provide a privilege to a particularmember of the class. See Sheldon, 22S.W.3d at 450–51; Maple Run at AustinMun. Util. Dist. v. Monaghan, 931 S.W.2d941, 945 (Tex.1996); Robinson v. Hill, 507S.W.2d 521, 525 (Tex.1974); R.H.O, RecentCase, Statutes—Special Laws—Reason-ableness of Classification, 11 TEX. L.REV.

134, 134–35 (1932) (collecting cases de-scribing the legal standard for review of aspecial law). The Court first determineswhether there is a reasonable basis for theclassification made by the law, and thendetermines whether the law operatesequally on all within the class. Rodriguez

19. ‘‘Logrolling’’ has been defined by ourCourts of Appeals as ‘‘the inclusion in a bill ofseveral subjects having no connection witheach other in order to create a combination ofvarious interests in support of the whole bill,’’Skillern v. State, 890 S.W.2d 849, 861 (Tex.

App.-Austin 1994, no writ) (citations omitted),and ‘‘trading votes to advance personal ratherthan public interests,’’ Diaz v. State, 68S.W.3d 680, 684 (Tex.App.-El Paso 2000, pet.denied).


v. Gonzales, 148 Tex. 537, 227 S.W.2d 791,793 (1950); Sheldon, 22 S.W.3d at 451.Only if the law fails both tests is it aspecial law and unconstitutional.

The determination of a ‘‘reasonable ba-sis’’ for the classification is not an invita-tion for the Court to engage in weighingthe relative pros and cons of a particularpolicy choice made by the Legislature. Asstated by this Court over 100 years ago:

Now, we do not propose to be led offinto any extended discussion as to whatis a proper class for the application of ageneral law. The tendency of the recentdecisions upon the subject, as it seemsto us, is to drift into refinements thatare rather more specious than profit-ableTTTT To what class or classes ofpersons or things a statute should applyis, as a general rule, a legislative ques-tion. When the intent of the legislatureis clear, the policy of the law is a matterwhich does not concern the courts.

Clark, 54 S.W. at 345–46. We do notanalyze the Legislature’s classification todetermine whether the classification is agood or bad idea. See Smith v. Davis, 426S.W.2d 827, 831 (Tex.1968). Rather weanalyze to ensure that the classification isnot made to ‘‘evade the prohibition of theconstitution as to special laws by making alaw applicable to a pretended class, whichis, in fact no classTTTT’’ Clark, 54 S.W. at345. We presume the statute is valid, and‘‘a mere difference of opinion’’ between theCourt and the Legislature will not be suffi-cient to overcome the presumption of va-lidity. Smith, 426 S.W.2d at 831.

The Rodriguez test’s two-part structureprovides the framework to determinewhether a class is a ‘‘pretended class.’’The first part of the test examines thedelineated class vis-a-vis the purpose ofthe legislation. Rodriguez, 227 S.W.2d at793. For example, if the purpose of thelaw is to provide tax relief to businesses in

the sports entertainment industry, but thetax relief is given only to businesses be-longing to or supporting teams in leaguesor conferences with ‘‘National’’ in theirname but not with leagues or conferenceswith ‘‘American’’ in their name, the classifi-cation would likely have no rational rela-tion to the purpose of the statute.

The second part of the test examineswhether similarly situated parties aretreated similarly under the classification,or whether the classification makes an ir-rational category considering the intent ofthe statute. See, e.g., Rodriguez, 227S.W.2d at 794 (holding that statute settingout special procedures for collecting delin-quent taxes on parcels of land greater than1,000 acres situated in counties borderingMexico and whose title emanated from theKing of Spain as an unconstitutional spe-cial law, as there was ‘‘no substantial dif-ference in the situation or circumstance ofborder counties relating to suits for delin-quent taxes’’); Miller, 150 S.W.2d at 1002–03 (holding as unconstitutional a statuteproviding an economic development taxonly in counties meeting population re-quirements, due to the fact that the stat-ute’s classification was not distinct in anysubstantial manner from other counties inthe state). Back to the example, the taxrelief statute above would likely be uncon-stitutional, as its effect is to provide reliefto the Houston Astros and the Dallas Cow-boys and the businesses that support them(as the Astros are a member of the Na-tional League, and the Cowboys are amember of the National Football Confer-ence), but would not provide relief to sup-porters of the Houston Texans and theTexas Rangers (as the Texans are a mem-ber of the American Football Conferenceand the Rangers are a member of theAmerican League). The classification is a‘‘pretended class’’ because the classifica-tion has no relation to the purpose of the


law and treats similarly situated teamsdifferently. Although the Court does notdefer to the Legislature to determinewhether a law is general or special, it doesdefer to the Legislature’s policy choicesand presumes that law is constitutional.See Smith, 426 S.W.2d at 831; McIntyre v.Ramirez, 109 S.W.3d 741, 748 (Tex.2003)(‘‘Our role here, however, is not to second-guess the policy choices that inform ourstatutes or to weigh the effectiveness oftheir results; rather, our task is to inter-pret those statutes in a manner that effec-tuates the Legislature’s intent.’’).

In this case, the purpose of the law hasbeen clearly expressed by the Legisla-ture—to eliminate the unfairness createdwhen a corporation merged with a smallercorporation that had previously been en-gaged in the manufacture or sale of asbes-tos is exposed to asbestos liability exceed-ing the value of the acquired corporation,and to save such a corporation from bank-ruptcy. H.J. of Tex., 78th Leg., R.S. 6042,6043 (2003) (HB 4 Statement of LegislativeIntent). To address concerns in the Leg-islature, the measure was restricted inthree ways. First, the original transfer ofliabilities had to occur prior to May 13,1968. This was the date in which theAmerican Conference of Governmental In-dustrial Hygienists first adopted a changein the recommended threshold limit forasbestos in the air of a workplace. Sec-ond, to get the benefit of the legislation,the acquiring corporation could not contin-ue in the asbestos business. Third, if thesuccessor continued to control a premisesafter the merger, the successor would con-tinue to be liable for any asbestos-relatedpremises liabilities it received from thepredecessor for injuries caused on thosepremises. Id. at 6043–44.

The Robinsons attack these limitationsas pretexts to limit relief just to CrownCork. However, it is clear that, regard-

less of the wisdom of the classifications,the classifications are rationally related tothe objective of the bill. The act sought toprotect ‘‘innocent’’ successor corporations.To define the most ‘‘innocent,’’ the Legisla-ture chose to limit mergers occurring priorto May 13, 1968. The Robinsons claimthat this date was chosen arbitrarily andthat the dangers of asbestos in the work-place were known prior to the ACGIH’smodification. However, this is the datedecided upon by the Legislature, and ithas a rational relationship to the legisla-tion—the Legislature could have, no doubt,chosen any number of cutoff dates to de-cide which successor corporations are themost ‘‘innocent,’’ and while others may dis-agree as to the appropriateness of thedate, such would merely be a ‘‘difference ofopinion,’’ and insufficient basis for over-turning the statute. Smith, 426 S.W.2d at831; see also Exxon Mobil Corp. v. Alti-more, 256 S.W.3d 415, 420–22 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (dis-cussing, in the context of the basis for apunitive damages award ‘‘scientists’ knowl-edge of the risk to refinery workers’’ ofasbestos, and noting studies originating inthe 1940s, 1950s, 1960s, and 1970s). Simi-larly, the second and third limitations alsoseek to limit protection to those businessesthat were not involved with the manufac-ture or distribution of asbestos, or thosethat actually had asbestos on the premises.This is also a rational distinction: TheLegislature sought to protect those busi-nesses that had nothing to do with asbes-tos prior to a merger, had nothing to dowith asbestos after the merger, and had noasbestos on its premises. The classifica-tions are rational.

The Robinsons also argue that the law isa ‘‘special law’’ because it created a class ofone—evidenced by (a) the fact that CrownCork did not identify any other businessesto which the law applied, (b) Crown Cork’slobbying for the law in Texas and other


states, and (c) statements by members ofthe Legislature that they were addressing‘‘the Crown Cork and Seal Issue.’’

The Robinsons cite to Miller’s statementthat classification ‘‘must be broad enoughto include a substantial class TTT’’ to meanthat it is the burden of the proponent ofthe law to prove that the law must apply tomore than one person. Miller, 150 S.W.2dat 1001. On the contrary, the size of theclass, itself, is not determinative. Whilecourts must be more exacting in reviewinga law that appears only to apply to oneparty, a ‘‘substantial’’ class does not equateto a class with thousands, hundreds, oreven dozens of members. There are nodoubt many Texas laws that apply to asmall subset of the population; rather, a‘‘substantial’’ class is one that has sub-stance—a real class of persons or entities,as opposed to a ‘‘pretended’’ class createdas a pretext.

The Robinsons’ evidence of pretext is noevidence at all. The Robinsons’ bare argu-ment that Crown Cork is a ‘‘class of one’’is insufficient. First, it is not CrownCork’s, but the Robinsons’ burden to dem-onstrate that the law is a special law.Second, even if the Robinsons could showthat the law currently applied only toCrown Cork, that alone would not fulfillthe burden that the law was special. Asdiscussed above, the Robinsons must showthat the classifications made by the Legis-lature were not rationally related to theobjective of the law, and the Robinsonsmust show that the legislation has treateda similarly situated successor company dif-ferently from Crown. They have doneneither.

The only other evidence the Robinsonsprovide is evidence of legislative history.

The Robinsons argue that the law is spe-cial because Crown Cork lobbied for theact and that at least one legislator calledthe Act the ‘‘Crown Cork issue’’ in a com-mittee hearing. This evidence is also una-vailing. First, as a beneficiary of this law,Crown Cork would certainly lobby for itsenactment. But then again, public interestgroups, individuals, and businesses regu-larly lobby for legislation that affects themdirectly or as an industry, and lobbyistsregularly draft legislation for legislators.See, e.g., Victoria F. Nourse & Jane S.Schacter, The Politics of Legislative Draft-ing: A Congressional Case Study, 77N.Y.U. L. REV. 575, 583, 587, 591 (2002)(noting a number of responses by legisla-tive aides that lobbyists regularly draft thetext of bills debated in the Senate Judicia-ry Committee and discussing an accountby a legislative aide where a companionbill was ‘‘negotiated and drafted by lobby-ists and introduced with only ‘minorchanges’ ’’). Many involved in the ‘‘sau-sage making’’ 20 task of developing law uselobbyists to draft the text of bills becauselobbyists provide valuable information andperspective on the bills being introduced.Id. at 583. Cognizant as I am of the needto avoid the gifts given by the Legislatureto favored individuals, the Robinsons mustcome up with more evidence than the merefact that Crown Cork was involved in thepassing, or even the drafting, of the act inquestion.

Likewise, the Robinsons’ evidence ofSenator Ratliff’s statement is also not evi-dence of House Bill 4’s ‘‘special law’’ sta-tus. The senator described Article 17 as‘‘the Crown Cork and Seal asbestos issue.’’First, the statement is no evidence be-cause, as this Court has repeatedly stated,a single statement by a single legislator

20. ‘‘Laws, like sausages, cease to inspire re-spect in proportion as we know how they aremade.’’ John Godfrey Saxe, as quoted in THE

YALE BOOK OF QUOTATIONS 86 (2006). This quo-

tation has previously been attributed to Ottovon Bismarck. See id.; In re Graham, 104So.2d 16, 18 (Fla.1958).


does not evidence legislative intent anddoes not determine legislative intent.E.g., AT & T Commc’ns of Tex., L.P. v.Sw. Bell Tel. Co., 186 S.W.3d 517, 528–29(Tex.2006); Gen. Chem. Corp. v. De LaLastra, 852 S.W.2d 916, 923 (Tex.1993).Second, to countenance this statement aseven ‘‘persuasive authority as might begiven the comments of any learned scholarof the subject,’’ De La Lastra, 852 S.W.2dat 923, would be to do a disservice to thelegislative process. Countless laws are ei-ther championed by a particular person orentity or arise out of the circumstancesthat will be or have been experienced byan individual or a business.21

In sum, the Robinsons meet neither ofthe factors in the Rodriguez test. TheRobinsons have not shown that the Legis-lator’s classifications are irrational or notrelated to the objective of the statute, norhave they shown that the Legislature hascreated a ‘‘pretended’’ class by excludingsimilarly situated entities.

III. CONCLUSION

I would hold that Chapter 149 is not anunconstitutional special law, and is not un-constitutionally retroactive as applied tothe Robinsons because the law limitedavailable remedies and did not destroy theRobinsons’ vested rights. I therefore re-spectfully dissent.

,

Roy Kenji YAMADA, M.D., Petitioner,

v.

Laura FRIEND, Individually and asPersonal Representative of the Estateof Sarah Elizabeth Friend, Deceased,and Luther Friend, Individually, Re-spondents.

No. 08–0262.

Supreme Court of Texas.

Argued March 10, 2009.

Decided Dec. 17, 2010.

Background: Parents of city water parkpatron who collapsed and died at parksued physician who provided advice to wa-ter park, based on claim that physiciannegligently advised water park about safe-ty procedures and regarding placement ofdefibrillators. The 342nd District Court,Tarrant County, Bob S. McGrath, J., de-nied physician’s motion to dismiss, andphysician appealed. The Fort Worth Courtof Appeals, 335 S.W.3d 201, determinedthat health care claims were subject todismissal for failure to file expert reportbut that claim based on negligence wasnot. Physician petition for review, and peti-tion was granted.

Holding: The Supreme Court, Johnson,J., held that parents could not avoid appli-cation of Texas Medical Liability Act onclaim against physician by simply fashion-

21. No one could claim that the Brady Hand-gun Violence Prevention Act of 1993, 18U.S.C. § 921–22, advanced by former WhiteHouse Press Secretary James Brady and hiswife Sarah, or the proliferation of Megan’sLaws, e.g., N.J. STAT. § 2C:7–1 to 11, dealingwith sex offender registration throughout thecountry, named after Megan Kanka, a minorwho was sexually assaulted in New Jersey, oreven the Copyright Term Extension Act,which was sometimes known as the ‘‘Mickey

Mouse Act,’’ because Disney lobbied exten-sively for the act and because the act prevent-ed the original Mickey Mouse cartoon‘‘Steamboat Willy’’ from entering the publicdomain, see Ben Depoorter, The Several Livesof Mickey Mouse: The Expanding Boundariesof Intellectual Property Law, 9 VA. J.L. & TECH,

no. 4, Spring 2004, at 3 n.2, would be speciallaws merely because an individual, or evenDisney, lobbied for them so strenuously thatthe bill was eventually named for them.

126 tex. 335 south western reporter, 3d series · robinson v. crown cork & seal co., inc.tex....

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