# Opinion

> Texas Supreme Court · October 22, 2010

URL: https://www.frixlaw.com/law-library/cases/2829215

## Case

- **Full name:** Barbara Robinson, Individually and as Representative of the Estate of John Robinson v. Crown Cork & Seal Company, Inc., Individually and as Successor to Mundet Cork Corporation
- **Court:** Texas Supreme Court
- **Decided:** October 22, 2010
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2829215

## How later opinions describe it (automated extraction)

- observing that a vested common law right of action is a property right that the legislation at issue did not affect
- holding that a plaintiff has a vested right in an accrued patent infringement claim
- holding that the interests of homeowners during the Great Depression did not justify interference with private mortgage contract rights
- noting that “[p] racticalities of the modern world have made free alienation of choses in action the general rule”

## Opinion text

IN THE SUPREME
COURT OF TEXAS
════════════
No.
06-0714
════════════
Barbara Robinson, Individually
and as Representative of the Estate of John Robinson, Deceased,
Petitioner,
v .
Crown, Cork & Seal
Company, Inc., Individually and as Successor to Mundet
Cork Corporation, Respondent
════════════════════════════════════════════════════
On Petition for Review from
the
Court of Appeals for the
Fourteenth District of Texas
════════════════════════════════════════════════════
Argued February 7, 2008
Justice Medina filed a
concurring opinion.
I join the Court’s opinion because I agree that a retroactive law is
presumptively “unconstitutional without a compelling justification that does not
greatly upset settled expectations” and that no such justification exists here.
___ S.W.3d ___, ___. I further agree that the
“constitutional prohibition against retroactive laws does not insulate every
vested right from impairment, nor does it give way to every reasonable exercise
of the Legislature’s police power[ .]” Id . at ___. And finally, I agree that Chapter 149 here
violates article I,
section 16 of the Texas Constitution because it operates to retroactively
abolish the Robinsons’ vested property rights, or in the words of the
Court—“significantly impacts a substantial interest the Robinsons have in a
well-recognized common-law cause of action. ” ___ S.W.3d at
___. I write separately because I do not share the Court’s disdain for
traditional vested rights analysis nor the dissent’s view of that
analysis.
I
I begin, as the Court does, with the twin goals served by the
Retroactivity Clause: (1) it protects individuals against legislative enactments
that unfairly deprive them of legitimate expectations, Owens Corning v.
Carter , 997 S.W.2d 560, 572 (Tex. 1999), and (2) it ensures that legislative
enactments do not single out individuals for preferential or arbitrary
treatment. See In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003) (upholding law
against retroactivity challenge because “the State [was] not pursuing a
retributive or punitive aim”); see also Landgraf v.
USI Film Prods. , 511 U.S. 244 , 284–85 & n.20
(1994). As the United States Supreme Court has observed, retroactive lawmaking
creates special opportunities for rewarding favored constituencies at the
expense of disfavored ones. Landgraf , 511 U.S.
at 266–67.
When determining whether a statute violates the Retroactivity Clause,
vested rights analysis poses three related questions. First, does the claimant
have a vested right affected by the statute? Second, does the retroactive
statute impair that vested right? And finally, does a compelling public interest
justify impairment through the state’s police power? See In re A.V. ,
113 S.W.3d at 361 ; Barshop v. Medina Cnty .
Underground Water Conserv .
Dist. , 925 S.W.2d 618 , 633–34
(Tex. 1996).
Concluding that vested rights analysis was “difficult” and
“inconsistent,” the court of appeals declined to address whether the Robinsons
had a vested right in their accrued tort claim or whether Chapter 149 intruded
upon that right. 251 S.W.3d 520, 526 . The court
concluded instead that, regardless of whether Chapter 149 implicated vested
rights, the law could be upheld as a reasonable exercise of the police power.
Id . at 534 (citing Barshop , 925 S.W.2d at 633-34 ). Taking
much the same tack, the Court begins with the last question but correctly
rejects the court of appeals’ rational basis analysis as the appropriate
constitutional standard. Along the way, the Court grapples with the nature of
the underlying property interest and its impairment, ultimately concluding that
the Robinsons possessed a substantial interest in a well-founded claim (dare I
say a vested property right) that Chapter 149 retroactively impaired. Although
the Court is reluctant to use the term “vested rights,” preferring instead to
speak of “settled expectations,” I believe we are talking about the same
thing.
II
Whether a right may be regarded as vested depends on considerations of
“fair notice,” “reasonable reliance,” and “settled expectations.” Owens
Corning , 997 S.W.2d at 572– 73; see also McCain v. Yost , 284
S.W.2d 898, 900 (Tex. 1955). Because the parties agree that Robinson’s claim has
accrued, see Pustejovsky v. Rapid-Am Corp. , 35
S.W.3d 643, 653 (Tex. 2000), the first question is whether or not that accrued
tort claim is a vested right. I conclude that it is.
While we have never invalidated a statute on the grounds that it
retroactively abrogated an accrued cause of action, we have noted on several
occasions that accrued causes of action enjoy constitutional protection under
article I, section 16. To be sure, no one has a vested right in a “mere
expectation . . . based upon an anticipated continuance of the present general
laws.” Ex parte Abell , 613
S.W.2d 255, 261 (Tex. 1981). At the same time, the Retroactivity
Clause
must be held to protect every right, even though not
strictly a right of property, which may accrue under existing laws prior to the
passage of any act which, if permitted a retroactive effect, would take away the
right. A right has been well defined to be a well founded claim and a well
founded claim means nothing more nor less than a claim
recognized or secured by law. . . . [A] right , in a
legal sense, exists when in consequence of given facts the law declares that one
person is entitled to enforce against another a claim, or to resist the
enforcement of a claim urged by another.
Mellinger v. City of Houston, 3 S.W. 249, 253 (Tex. 1887); see
also Owens Corning , 997 S.W.2d at 572 n- 73(observing that “[c] onsiderations of fair notice, reasonable reliance, and
settled expectations play a prominent role” when determining rights entitled to
constitutional protection); Middleton v. Tex. Power & Light Co. , 185
S.W. 556, 560 (Tex. 1916) (observing that a vested common law right of action is
a property right that the legislation at issue did not affect).
We have also held that the Legislature may affect remedies for accrued
causes of action, so long as the remedy is not entirely 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 , 263 S.W. 905, 907 (Tex. 1924) (orig. proceeding);
see also DeCordova v. City of Galveston , 4 Tex.
470 , 477–78 (1849) (explaining the remedial exception and endorsing a New
Hampshire decision affording protection to accrued causes of action). If Texas
law afforded no constitutional protection to accrued causes of action, there
would be no need to permit the Legislature to modify attendant remedies, nor any
need to bar the Legislature from stripping a plaintiff of all remedy.
Not all courts agree with this analysis, however. Several federal courts
suggest that a plaintiff has no vested right in an accrued tort claim until the
claim is pursued to final judgment. 1 The majority of jurisdictions, however,
appear to afford constitutional protection to accrued tort claims without a
final-judgment requirement.
For example, the Kansas Supreme Court has rejected the notion that a
property right in an accrued tort claim should not vest before final judgment.
Resolution Trust Corp. v. Fleischer , 892 P.2d 497 ,
500–06 (Kan. 1995). The court noted some disagreement about vested
rights, particularly in the federal courts, but suggested that “the apparent
conflicting holdings [were] not as divergent as they initially appear[ ed ].” Id.
at 503 . Instead, the court observed that the outcome in decisions
espousing a final-judgment requirement could generally be explained by other
factors, such as: “(1) the nature of the rights at stake (e.g. ,
procedural, substantive, remedial), (2) how the rights were affected
(e.g. , were the rights partially or completely abolished by the
legislation; was any substitute remedy provided), and (3) the nature and
strength of the public interest furthered by the legislation.” Id. The
court then noted that most of the federal cases favoring a final-judgment
requirement involved issues of federal preemption and the substitution of a
federal remedy for the common law claim, while others involved either the
clarification of defects in an existing ambiguous statute or retroactive
legislation aimed at urgent problems of great public interest. See Id.
(citing cases). In short, the cases generally turned on factors other than the
existence of a final judgment.
The United States Supreme Court has hesitated to apply the due process
clause in this area. See, e.g., Daniels v. Williams , 474 U.S. 327,
332 (1986) (rejecting reasoning that would superimpose the Fourteenth Amendment
as a “font of tort law”); Paul v. Davis , 424 U.S. 693, 701 (1976) (same);
but see Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982)
(considering it “settled” that “a cause of action is a species of property”).
Notions of comity and federalism may explain this hesitancy in part,
particularly when state enactments are under review. David Richards & Chris
Riley, Symposium on the Texas Constitution: a Coherent Due-Course-of-Law
Doctrine , 68 Tex. L. Rev.
1649 , 1666 (1990). But these considerations do not similarly encumber state
courts. Moreover, our state Constitution, unlike its federal counterpart,
includes an independent anti-retroactivity provision, and Texas’s Retroactivity
Clause goes beyond federal guarantees of property and due process. Ex parte
Abell , 613 S.W.2d at 260 . As we explained in Mellinger :
It can not be presumed that in
adopting a Constitution which contained a declaration “that no retroactive law
shall be made,” that it was intended to protect thereby only such rights as were
protected by other declarations of the Constitution which forbade the making of
ex post facto laws, laws impairing the obligation of contracts, or laws which
would deprive a citizen of life, liberty, property, privileges or immunities,
otherwise than by due course of the law of the land. . . .
3 S.W. at 252 ; see also
Richards & Riley, 68 Tex. L.
Rev. at 1650 (noting that drafters of our 1836 Constitution held “a
distinctly Jacksonian ” concept of democracy and a
“wariness of governmental authority”). And finally, every state whose
constitution includes an independent anti-retroactivity provision concludes that
accrued causes of action are vested rights. 2
Though a plaintiff’s ultimate right to recover is contingent upon success
at trial, a plaintiff may nonetheless have a “settled expectation” that, once
wronged, he or she will be able to pursue a claim against his wrongdoer under
the substantive laws as they existed at the time his or her cause of action
accrued. Mellinger , 3 S.W. at 253 ; see also
Likes , 962 S.W.2d at 502 (indicating that retrospective law that entirely
eliminates pending cause of action would be “unconstitutionally retroactive”). A
plaintiff thus has a property interest in an accrued cause of action which the
Texas Constitution 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 minority view that a property interest
in an accrued cause of action not vest before final judgment is rendered.
According to the dissent, no reasonable litigant has a “‘settled expectation’ of
achieving monetary recovery” before judgment. ___ S.W.3d ____,
____ (Wainwright, J. dissenting). And as to this case, the dissent
submits that the “Robinsons’ expectation in the continued state of law [was]
low” because of “numerous contingencies” and their failure to take “any action
in reliance on the law at the time.” ___ S.W.3d ____, ____,
___ (Wainwright, J. dissenting). In the dissent’s view, the Robinsons’
pending tort claims were nothing more than a valueless contingent interest in an
uncertain future judgment. I disagree for several reasons.
First, I reject the notion that an accrued cause of action has no value
apart from a judgment and is not itself a protected property interest. An
accrued cause of action is clearly property under Texas law. See Tex. Prop. Code § 12.014. It has value, even
if that value is not always easy to measure. Ownership and control is vested in
the holder of the claim, and those interests can generally be sold or assigned.
Int’l Proteins Corp. v. Ralston-Purina Co., 744 S.W.2d 932, 934 (Tex.
1988); see PPG Indus., Inc. v. JMB/Houston Ctrs .
Partners Ltd. P'ship , 146 S.W.3d 79, 106 (Tex.
2004) (tracing development of modern law allowing transfer of choses in action); State Farm Fire & Cas . Co. v. Gandy , 925 S.W.2d 696, 707 (Tex. 1996)
(noting that “[p] racticalities of the modern world
have made free alienation of choses in action the
general rule”).
Further, an accrued cause of action is “constitutional” property, a
vested property right, because the holder has a legitimate expectation that the
claim will be recognized by state law. See Jack M. Beermann , Government Official Torts and the Takings
Clause: Federalism and State Sovereign Immunity , 68 B.U.L. Rev . 277, 302 (1988); see
also Logan, 455 U.S. at 428 (considering it “settled” that “a cause of
action is a species of property”). The dissent’s preoccupation with final
judgments is misguided because the relevant expectations here involve the cause
of action, not some future judgment. It is the right to sue itself—the
lawsuit—that is being taken away, not the final outcome.
Once a lawsuit is filed, subsequent action by the sovereign interferes
not with possible or potential rights that might accrue in the future, but with
existing expectations and rights that have accrued—that have “vested”—and that
constitute a present property interest. As one legal scholar
explains: “a cause of action might be thought of as an entitlement to employ the
state’s adjudicatory machinery which can only be denied for cause, cause being
the failure to establish the elements of the cause of action or to comply with
reasonable procedural requirements.” Beermann ,
68 B.U.L. Rev . at 305 n.121 (citing Logan , 455 U.S. 422 ) . Other
authorities share the same view:
Determining whether vested rights exist implicates
whether the property owner has a “legitimate claim of entitlement.” . . .
Clearly, the plaintiff has no “entitlement” to the damages sought, or to any
form of successful resolution of the lawsuit, as he might lose on the merits or
because of procedural aspects of the case. But just as clearly, the plaintiff’s
interest in the lawsuit itself should qualify as an “entitlement that may be
terminated only for cause” that should warrant constitutional
protection.
Jeremy A. Blumenthal, Legal Claims
as Private Property: Implications for Eminent Domain , 36 Hastings Const. L.Q. 373 , 401 (Spring
2009) (footnotes omitted); see also Resolution Trust Corp. , 892
P.2d at 502 (holding accrued tort claim to be vested property right and
rejecting similar final-judgment argument because it “fails to recognize the
distinction between a right of action and a right of recovery”).
Finally, even if some manner of affirmative act is, as the dissent
suggests, a necessary part of the “settled expectations” test, it is clearly
established here. Contrary to the dissent’s characterization, the Robinsons were
not idle while Crown Cork labored to undo their accrued claim. The Robinsons
filed suit, litigated their claim for several months, and obtained a partial
summary judgment. Only after that did the Legislature enact Chapter 149, taking
away the Robinsons’ summary judgment and their underlying cause of action.
Although the Robinsons had not yet obtained a final judgment (and thus had no
vested property right in that non-existent judgment), they did possess a vested
property right in their pending cause of action that included the right to
prosecute the claim. See Washington-Southern Navigation Co. v. Baltimore
& Philadelphia S.B. Co. , 263 U.S. 629, 635 (1924) (“The right of a
citizen of the United States to sue in a court having jurisdiction of the
parties and of the cause of action includes the right to prosecute his claim to
judgment.”).
Although I emphatically disagree with the dissent’s view that an accrued
cause of action is too indefinite, and its owner’s expectations too
insignificant, to warrant constitutional protection, I readily concede that “no
one has a vested right . . . or a property right, in a mere rule of law.” ___
S.W.3d at ____ (Wainwright, J. dissenting) (quoting Middleton , 185 S.W.
at 560 ). The continuation of a rule of law in the abstract, however, is very
different from the preservation of a claim that has already accrued under that
law. Although a “person has no property, no vested interest, in any rule of the
common law,” nevertheless, “[r] ights of property which
have been created by the common law cannot be taken away without due process.”
Munn v. Illinois, 94 U.S. 113, 134
(1877).
The distinction is the difference between the prospective or retroactive
application of a law. Prospective laws that diminish or eliminate future causes
of action (or defenses) do not ordinarily implicate vested property rights.
However, where “a law changes the legal consequences of past
actions, it interferes with vested rights, and courts have found that property .
. . is implicated.” Olivia A. Radin , Rights
as Property , 104 Colum. L.
Rev . 1315, 1331 (2004). A cause of action vests upon the occurrence of an
injury, and that “vested right of action is property in the same sense in which
tangible things are property, and is equally protected
against arbitrary interference.” Pritchard v. Norton,
106 U.S. 124, 132 (1882).
Our opinion in Ex parte Abell , which the
dissent quotes at length, is to the same effect. ___ S.W.3d at ___ (Wainwright,
J. dissenting) (quoting Ex parte Abell , 613
S.W.2d at 261 ). Abell restates the rule from
Mellinger that the Legislature can declare
prospectively that the state of facts that once created a claim, no longer will;
but once “the state of facts which the law declares shall give a right comes
into existence,” the right is “fixed” or “vested,” and the Legislature cannot
retroactively undo what has already accrued. Abell , 613 S.W.2d at 261 (quoting Mellinger , 3 S.W. at
253 ).
The dissent accepts the rule, but only to a point. It acknowledges that a
defense of repose vests upon accrual and cannot thereafter be rescinded by the
Legislature:
. . . the Legislature cannot
resurrect causes of action that have already been extinguished by retroactively
lengthening the statute of limitations. E.g. Baker Hughes, Inc. v.
Keco R. & D., Inc. , 12 S.W.3d 1 , 4 & n.12
(Tex. 1999); Wilson v. Work , 62 S.W.2d 490 , 490–91 (Tex. 1933) (per curiam ). . . . In other words, when the statute extinguished
a cause of action, a defendant received a vested right of repose barring the
extinguished claim.
__ S.W.3d at ____
(Wainwright, J. dissenting). But the dissent refuses to extend
similar protection to an accrued claim. I see no basis for limiting the
Retroactivity Clause to defensive claims. See 1 George D. Braden, et al., the Constitution of
the State of Texas: an Annotated and Comparative Analysis 58 (1977)
(observing that the “prohibition concerning ‘retroactive laws’ seems to spring
from a general suspicion regarding all retroactive laws”).
Rights acquired under existing law, whether defensive or offensive, are
treated similarly under the Texas Constitution. Thus, once a statute of
limitations has run or a cause of action has accrued, retroactive legislation
that either revives an extinguished claim, or bars an existing one, affects a
vested property right. The Retroactivity Clause applies in either instance.
See Mellinger , 3 S.W. at 253
(observing that Retroactivity Clause applies both to vested claims and
defenses). I would therefore conclude that the Robinsons’ accrued claims
are vested rights to which the protection of article I, section 16 may
apply.
IV
Crown Cork argues, however, that even if a plaintiff has a vested right
in an accrued tort claim, Chapter 149 does not intrude upon the Robinsons’
vested rights for several reasons. First, Crown Cork argues that Chapter 149
does not infringe on this right because the statute merely works a change to
procedure or remedy. It is well established that a party has no vested right in
a remedy or rule of procedure. Subaru, 84 S.W.3d at
219 . The lines that divide substance from procedure or remedy, however,
are notoriously difficult to draw. Tex. Water Rights Comm’n v. Wright , 464 S.W.2d 642 , 648–49 (Tex.
1971). But we need not parse these “superfine” distinctions here, Langever v. Miller , 76 S.W.2d 1025, 1029 (Tex.
1934), because, whether regarded as remedial or substantive, Chapter 149
entirely eliminates the Robinsons’ remedy for Mundet’s
torts. See Likes , 962 S.W.2d at 502–03; Phil H.
Pierce Co. , 263 S.W. at 907 ; DeCordova , 4
Tex. at 479–80. Though it is conceivable that Robinson may establish that
one of the other defendants in the original action is jointly and severally
liable for all of her damages, Robinson has a separate cause of action against
each of these defendants that might properly be tried and determined as if it
were the only claim in controversy. See Morgan v. Compugraphic Corp. , 675 S.W.2d 729 ,
733–34 (Tex. 1984). Chapter 149 extinguishes this separate action in its
entirety, releasing Crown Cork from its obligation assumed under the merger
agreement to pay for Mundet’s torts. See Sam
Bassett Lumber Co. v. City of Houston , 198 S.W.2d 879, 882 (Tex. 1947)
(distinguishing permissible changes to statutes of limitations from enactments
releasing or extinguishing a debt).
Crown Cork also argues that Chapter 149 does not intrude on the
Robinsons’ vested rights because it affects vicarious liability. In Aetna
Ins. Co. v. Richardelle , 528 S.W.2d 280 (Tex. Civ.
App.—Corpus Christi 1975, writ ref’d n.r.e .), the court of appeals upheld a law retroactively
repealing the statutory vicarious liability of some parents for the torts of
their minor children. Though Aetna described vicarious liability as
“remedial,” it did not hold that the Legislature might alter vicarious
liabilities at will without running afoul of the Retroactivity or Contract
Clauses. Aetna merely held that statutory causes of action do not
generally give rise to vested rights. Id. at 285
(citing Dickson v. Navarro Levee Imp. Dist. , 139 S.W.2d 257, 259 (Tex.
1940)). Unlike the parents’ vicarious liability for the torts
of their children, successor liability is not purely statutory. Successor
liability, at least when it attends a formal merger, instead arises from the
contractual merger agreement and from the plaintiff’s underlying tort or
contract claim, and was recognized at common 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. , 244 N.W.2d 873 , 877–78 (Mich. 1976)
(“Most of [the rules of successor liability] may fairly be said to have arisen
from case law”). Though successor liability is now governed by statute, the
corporations law is a shield to common law liability,
not a legislatively created right within the meaning of
Dickson .
Crown Cork next argues that Chapter 149 does not intrude on the
Robinsons’ vested rights because it is akin to a borrowing statute or choice of
law rule mandating that Texas, rather than Pennsylvania or New York, law apply
to determine corporate successor liability in asbestos cases. In Owens
Corning , we held that a plaintiff had no vested right in a borrowing statute
that permitted out-of-state plaintiffs to file stale out-of-state claims in
Texas courts under Texas’ more permissive statute of limitations. 997 S.W.2d at 571–73. But Chapter 149 represents not only a
choice of law rule but also a change to Texas’ substantive law of successor
liability. Cf. id. at 573. Before the passage of
Chapter 149, no matter which state’s law applied, Crown Cork would have faced
liability 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,
Pennsylvania has already invalidated a statute providing protections virtually
identical to those found in Chapter 149. See Ieropoli v. AC&S Corp. , 842 A.2d
919, 921 (Pa. 2004).
Finally, Crown Cork cites Owens Corning to argue that Chapter 149
does not interfere with vested rights because Robinson had no legitimate
expectation that Mundet would merge with a much larger
corporation and because it is not inequitable to relieve Crown Cork of wholly
unexpected and innocently acquired asbestos liabilities. 997
S.W.2d at 572–73. In approving the borrowing statute at issue in Owens
Corning , we noted that it was not inequitable to require a plaintiff
bringing an out-of-state claim to satisfy the statute of limitations provided by
the law supplying the cause of action: “a plaintiff should not be able to gain
greater rights than he would have in the state where the cause of action arose
and where he lives simply by bringing suit in Texas.” Id. at 573. But Chapter 149 goes much further and
“creates an immunity where none existed before.”
Id. To be sure, Crown Cork probably did not expect the merger with Mundet to entail such extensive liability, and Robinson
could hardly have a settled expectation that Mundet
would be acquired by a much larger corporation. But it is not inequitable to
require Crown Cork to pay for Mundet’s torts because
when two corporations formally merge, the law regards them as one. Though this
rule may permit plaintiffs to recover where they otherwise would not, “[ i ]n substance, if not in form, the post-transfer entity
distributed the defective products and 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 abrogated. But this is not the end of
the analysis. As the Court observes, “the constitutional prohibition against
retroactive laws does not insulate every vested right from impairment” and a
compelling public interest may justify impairment, although “the heavy
presumption against retroactive laws” makes instances of this quite rare. ___ S.W.3d at ___.
In fact, we have only twice recognized legislative interests of
sufficient import to override vested private rights: Barshop , 925 S.W.2d 618 , and In re
A.V., 113 S.W.3d 355 . At issue in Barshop
was a statute regulating water use in the Edwards Aquifer basin. Before the
enactment of the law, property owners were permitted, under the rule of capture,
to extract as much water as they desired from the aquifer. Concerned that the
rule of capture discouraged water conservation, the Legislature authorized local
water districts to regulate water use through a permitting scheme that allocated
use permits on the basis of historical use. Without conducting a vested rights
analysis, we held that the Legislature’s interest in water conservation trumped
whatever interest landowners had in the continued existence of the rule of
capture because “[c] onservation of water has always
been a paramount concern in Texas, especially in times, like today, of
devastating drought.” Barshop , 925 S.W.2d at 626 .
In In re A.V. , 113 S.W.3d 355 , we
held that the Legislature could permissibly enact a statute terminating parental
rights on the basis of a parent’s future imprisonment for prior criminal
convictions. Though we found that the provision did not intrude upon vested
rights, we explained that, even if it had, the Legislature’s interest in
protecting “the safety and welfare of its children” trumped any individual
interest in retaining parental rights while unable to care for the child. Id. at 361 .
In contrast to the public interest at issue in those cases, the interest
protected here is essentially a private economic one. As the Court observes,
“the legislative record is fairly clear that chapter 149 was enacted to help
only Crown and no one else.” ___ S.W.3d at ___. The
Legislature certainly has a valid interest in protecting Crown Cork’s
shareholders and pensioners, and in promoting business in the state. The
Legislature also has a legitimate interest in protecting defendants from
excessive liability. But the Legislature’s interest in protecting the financial
well-being of a favored defendant is not on par with the public interest in the
avoidance of catastrophic drought or the protection of child welfare. Cf.
Barshop , 925 S.W.2d at 626 ;
In re A.V. , 113 S.W.3d at 361 . Private economic interests will
generally not justify intrusions into the vested private rights of others.
See, e.g., Travelers Ins. Co. v. Marshall , 76 S.W.2d 1007 , 101 –12
(Tex. 1934) (holding that the interests of homeowners during the Great
Depression did not justify interference with private mortgage contract rights);
Lucas v. United States , 757 S.W.2d 687, 701 (Tex. 1988) (holding that it
was “simply unfair and unreasonable to impose the burden of supporting the
medical care industry solely upon those persons who are most severely injured
and therefore most in need of compensation.”). Moreover, the Legislature’s
interest in protecting “innocent” defendants does not justify its assumption
here of the judiciary’s role of adjusting private obligations incurred under
existing law. See Landgraf , 511 U.S. at 267
n.20 (quoting Richmond v. J.A. Croson Co. , 488
U.S. 469 , 513–14 (1989) (Stevens, J., concurring in part and concurring in the
judgment)). As with the takings clause, one of the purposes of the prohibition
on retroactive lawmaking is to ensure that the burdens of governance do not fall
unfairly on a small number of citizens. See id. ( citing The
Federalist No. 44 (James Madison)). The legislative interest asserted
here is simply insufficient to justify an intrusion into the Robinsons’ vested
rights, and thus I agree with the Court that the innocent successor provisions
of Chapter 149 cannot be justified as a valid exercise of the police power and
is, as applied here, prohibited under the Retroactivity Clause. Tex. Const . art. I, §
16.
______________________________________
David M. Medina
Justice
Opinion Delivered: October 22, 2010
1
Compare Hammond v. United States , 786 F.2d 8, 12 (1st Cir. 1986)
(holding that a plaintiff has no vested right in a tort claim until the claim is
pursued to final judgment); In re TMI , 89 F.3d 1106, 1113 (3d Cir. 1996);
Zeran v. Am. Online, Inc. , 129 F.3d 327,
335 (4th Cir. 1997); Lunsford v. Price , 885 F.2d 236 , 240–41 (5th Cir.
1989); Symens v. SmithKline Beecham
Corp. , 152 F.3d 1050 , 1056 n.3 (8th Cir. 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 a vested right in an accrued patent infringement claim); Garcia
v. Wyeth-Ayerst Labs. , 385 F.3d 961, 968 (6th Cir. 2004); Hoyt Metal Co.
v. Atwood , 289 F. 453 , 454–55 (7th Cir. 1923); De Rodulfa v. United States , 461 F.2d 1240, 1257 (D.C. Cir.
1972).
2 See
DeCordova , 4 Tex. 476–77 (looking to the decisions
of other states whose constitutions contain anti-retroactivity provisions);
see also Denver, S.P. & P.R. Co. v. Woodward , 4 Colo. 162, 164-65 (Colo.
1878); Synalloy Corp. v. Newton, 326 S.E.2d
470, 472 (Ga. 1985); Bryant v. City of Blackfoot, 48 P.3d 636, 642 (Idaho
2002); Hess v. Chase Manhattan Bank , 220 S.W.3d 758 , 769–72 (Mo. 2007);
Shea v. North-Butte Mining Co., 179 P. 499, 503 (Mont. 1919); Groch v. Gen. Motors Corp ., 883 N.E.2d 377 ,
408 (Ohio 2008); Mills v. Wong , 155 S.W.3d 916, 921 (Tenn.
2005).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2829215. Public record. Not legal advice.