Opinion

IN THE SUPREME COURT OF TEXAS

════════════

No. 06-0714

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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 Wainwright , joined

by Justice Johnson,

dissenting.

The

Legislature enacted Chapter 149 of the Civil Practice and Remedies Code to

protect businesses, which acquired other entities, from financial disaster based

solely upon the acquired entities’ past, discontinued manufacture of asbestos

products. The statute limits the liability of the acquiring business,

which had not engaged in the asbestos business, to the fair market value of the

acquired entity at the time of the acquisition. Through Chapter 149, the

Legislature balances limitations on asbestos-related recoveries against

protecting the assets and employees of businesses who did not cause the illness,

while leaving intact the entirety of potential liability and damages proven

against companies that were involved in the asbestos business and are, perhaps,

more culpable. The Court’s holding that the legislation is

unconstitutional prevents the Legislature from addressing an injustice arising

from a crisis that caused dozens of bankruptcies and the loss of thousands of

jobs in this state and throughout the country due to asbestos-related

litigation. See, e.g. , Jonathan Orszag, The Impact of Asbestos

Liabilities on Workers in Bankrupt Firms, Remarks at the Asbestos Litigation

Symposium at the South Texas College of Law in Houston, Tex. (Mar. 7, 2003),

in 44 S. Tex. L. Rev .

1077, 1078–80 (2003) (describing results of a study indicating that sixty-one

companies entered into bankruptcy and that 52,000 to 60,000 people lost their

jobs due to asbestos litigation).

The Court’s new balancing test reaches the wrong result. By holding that

an unliquidated claim with “substantial basis in fact” is entitled to

constitutional protection, it ignores an important principle. ___ S.W.3d ___. The constitutional retroactivity

doctrine does not protect an asserted entitlement to property one does not own,

and until a final judgment in a case, we do not know whether the claim will be

vindicated or refuted. The Court’s reasoning that the right to file a

claim is protected by the retroactivity doctrine because, at least in part, the

claim is well founded with a “substantial basis in fact” springing from a

“mature tort” with “ more predictable” recovery, is a

troubling proposition. ___ S.W.3d ___. It

is unclear what that means, but it suggests that the

constitutional retroactivity protection is dependent on the perceived strength

of a claim. The likelihood of success in litigation is dependent on a

myriad of factors that make such predictions difficult at best. We have

held that an unliquidated personal injury claim is not a protected property

interest, and the contingent recovery from one should not be either.

While Justice Medina, who writes

separately, and I disagree on the

result, we agree that the Court should not abandon vested rights jurisprudence

in favor of a new and uncertain approach. The analysis in the Court’s

opinion is contrary to both the clear rule among the federal courts of appeals

that have addressed the issue and the majority rule among our courts of

appeals. The Court could rely on traditional police power jurisprudence in

which, even if the Robinsons had a vested right in their unliquidated cause of

action, courts consider whether the Legislature’s action was justified by its

constitutionally recognized police power to act in the interest of the health

and welfare of Texas. Indeed, the Court’s new balancing test for

retroactivity analysis is similar to the police power balancing test I expound

under existing law, but is newly incorporated into the retroactivity

doctrine. For all these reasons, I respectfully dissent.

I. BACKGROUND

John Robinson served in the Navy for twenty years, and during that time he was

exposed to steam pipes and boiler doors coated with insulation containing

asbestos. Some of the insulation and other products were marked with a

“big M,” the trademark used by Mundet Cork Corporation. In August 2002,

Robinson was diagnosed with mesothelioma. He claims the disease occurred

as a result of his exposure to asbestos in, among others, insulation products

produced by Mundet.

Crown Cork itself has never been in the business of mining, manufacturing,

installing, selling, distributing, removing, or otherwise making asbestos or any

asbestos-containing product. However, on November 7, 1963, Crown Cork’s

predecessor entered into an agreement to purchase the majority of Mundet’s stock

after the majority shareholder died and offered the shares for sale. Crown

Cork paid approximately $7 million for the stock, a majority interest in the

company.

Mundet ceased manufacturing insulation products prior to Crown Cork’s

acquisition of Mundet, but continued to hold insulation products in stock until

early 1964, when a third-party entity purchased the assets of Mundet’s

insulation division, including its inventory, contracts, raw materials, and

accounts receivables. On January 4, 1966, Mundet statutorily merged with

Crown Cork’s predecessor, and in 1989 Crown Cork was reincorporated in

Pennsylvania. 1

After he had been diagnosed with mesothelioma, Mr. Robinson and his wife filed

suit in 2002 against Crown Cork and twenty other defendants for damages caused

by Mr. Robinson’s exposure to asbestos-containing products. The Robinsons

sought to hold each defendant jointly and severally liable. On November

25, 2002, the Robinsons filed a motion for partial summary judgment to establish

Crown Cork’s liability for actual damages as Mundet’s successor. Crown

Cork did not contest its successor liability for compensatory damages, and on

July 16, 2003 the trial court granted the Robinsons’ motion, holding that Crown

Cork “is liable and bears responsibility for the compensatory damages, if any,

awarded to Plaintiffs that are attributable to the conduct, products, or torts

of its predecessor Mundet Cork Corporation.”

House Bill 4, a bill drafted to comprehensively address perceived crises in

medical malpractice, asbestos, and other litigation issues in Texas, was

introduced in the Texas House of Representatives on February 17, 2003, without

any provision regarding successor asbestos liability. Tex. H.B. 4, 78th

Leg., R.S. (2003). Its purpose was to operate as a “comprehensive civil

justice reform bill intended to address and correct problems that currently

impair the fairness and efficiency of our court system.” House Comm. on

Civil Practices, Bill Analysis, Tex. H.B. 4, 78th Leg., R.S. at 1 (2003).

In late March 2003, more than 100 amendments were submitted to the Bill,

including Article 17, the asbestos successor-liability article. The

article was debated on the floor of the House on March 25, 2003 and passed the

House three days later. Both the House and Senate held hearings on the

bill as a whole. In an April 30, 2003 meeting of the Senate State Affairs

Committee, Senator Ratliff, the committee chair, introduced hearings on the

Senate Substitute to House Bill 4. He described Article 17 as follows:

Article 17, limitations in civil actions of liabilities relating to

certain mergers or consolidations. This, members, is the Crown Cork

and Seal asbestos issue. What we have put in this bill is what I

understand to be an agreed arrangement between all of the parties in this—in

this matter.

Hearings on

the Proposed Senate Substitute for H.B. 4 Before the S.

Comm. on State 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 Conference Committee compromise bill on

June 1, 2003; both adopted corrections on June 2, 2003; and the bill was signed

into law by the Governor on June 11, 2003. Act of June 2, 2003, 78th Leg.,

R.S., ch. 204, 2003 Tex. Gen. Laws 847 , 899 (codified at Tex. Civ. Prac. & Rem.

Code §§

149.001–.006). With a two-thirds vote in both

chambers, the bill took effect immediately and was made retroactive to all cases

“pending on that effective date and in which the trial, or any new trial or

retrial following motion, appeal, or otherwise, begins on or after that

effective date.” 2 Id. § 17.02(2), 2003 Tex.

Gen. Laws at 895; see also Tex.

Const. art. III, § 39 (“No law passed

by the Legislature, except the general appropriation act, shall take effect or

go into force until ninety days after the adjournment of the session at which it

was enacted, unless the Legislature shall, by a vote of two-thirds of all the

members elected to each House, otherwise direct; said vote to be taken by yeas

and nays, and entered upon the journals.”).

The act limits the “cumulative successor asbestos-related liabilities” “incurred

by a corporation as a result of or in connection with a merger or consolidation . . . with or into another

corporation or that are related in any way to asbestos claims based on the

exercise of control or the ownership of stock of the corporation before the

merger or consolidation that occurred” prior to May 13, 1968. Tex. Civ. Prac. & Rem.

Code §§ 149.001–.003. 3 The asbestos liabilities of

successor corporations “are limited to the fair market value of the total gross

assets of the transferor determined as of the time of the merger or

consolidation,” id. § 149.003(a), and adjusted for inflation at a simple

interest rate of the prime rate plus one percent, id. § 149.005(a).

An “asbestos claim” is “any claim, wherever or whenever made, for damages,

losses, indemnification, contribution, or other relief arising out of, based on,

or in any way related to asbestos, including” property damage caused by

asbestos, the health effects of asbestos exposure, or any claim made by or on

behalf of any person exposed to asbestos. Id. §

149.001(1). The Legislature clearly intended to limit recoveries

only against so-called “innocent” successor companies.

According to Crown Cork’s experts, by May 2003, Crown Cork had paid or agreed to

pay asbestos related claims, not covered by insurance, totaling more than seven

times the present value of Mundet according to the statutory formula. On

July 3, 2003, Crown Cork filed a Motion for Summary Judgment raising the

affirmative defense of Chapter 149, introducing evidence of the value of Mundet

and total asbestos-related payments made by Crown Cork to date. The

Robinsons asserted that the statute was a “special law” in violation of article

III, section 56 of the Texas Constitution, that it deprived the Robinsons of a

vested property right in violation of article I, section 16 of the Texas

Constitution, that the statute was an unconstitutional taking, violating article

I, section 17 of the Texas Constitution and the Fifth and Fourteenth Amendments

to the United States Constitution, that it constituted a deprivation of

substantive due process rights under the Texas and United States Constitutions,

that it deprived John Robinson of a contractual right, contrary to article I,

section 16 of the Texas Constitution, and deprived John Robinson of his common

law causes of action in violation of the Open Courts guarantee in article I,

section 13 of the Texas Constitution. The Robinsons raise only the

retroactivity and special law challenges before this Court. Implicitly

finding that Crown Cork had established that the statute applied to it as a

matter of law, and that Crown Cork had already paid liabilities in excess of

Mundet’s adjusted value, the trial court granted Crown Cork’s motion for summary

judgment on October 2, 2003. It issued an amended order nineteen days

later, dismissing claims against Crown Cork brought by the Robinsons. 4 The Robinsons nonsuited their

remaining claims against Crown Cork and then appealed the summary judgment. 5 The court of appeals

affirmed. Characterizing the jurisprudence on vested rights as

“inconsistent and difficult to use as a guide,” the court instead balanced the

Legislature’s police power against the private rights impacted by the statute,

and held that the statute was constitutional. 251 S.W.3d

520 , 532–35 (Tex. App.—Houston [14th Dist.] 2006, pet. granted).

One justice dissented, arguing that the court should have applied a vested

rights analysis and concluded that the statute violated article I, section

16. Id. at 551–52 (Frost, J.,

dissenting).

II. ANALYSIS

In this Court, the Robinsons raise only two issues, and both are grounded

exclusively in Texas law. They argue that Chapter 149 of the Texas Civil

Practice and Remedies Code is an unconstitutional “special law” and that it is

unconstitutionally retroactive when applied to the Robinsons’ claims to

effectively bar recovery. 6 As the party challenging the

constitutionality of the statute, the Robinsons must overcome the presumptions

that “the Legislature intended for the law to comply with the United States and

Texas Constitutions, to achieve a just and reasonable result, and to advance a

public rather than a private interest.” Tex.

Mun. League Intergovernmental 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 , 180 S.W. 597,

605 (Tex. 1915)). The Robinsons also bear the burden

of showing that the law is contrary to a provision of the state

constitution. See, e.g. , Walker v.

Guiterrez , 111 S.W.3d 56, 66 (Tex. 2003). The Robinsons’

retroactivity claim is an as-applied challenge, which means that they must

demonstrate that the statute is unconstitutional as it operates in practice

against them. Tex Mun. League , 74

S.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

challenge is a facial challenge, which means that the Robinsons must demonstrate

there is no conceivable set of facts that could exist under which the statute

would be constitutional. Garcia , 893 S.W.2d at

520 .

In this case the Court determines that the law is unconstitutionally retroactive

and thus does not reach the special law challenge. However, for the

reasons that follow, I would hold that the law survives both challenges, but for

reasons different from those articulated by the court of appeals.

A. Retroactive Law

Article I, section 16 of the Texas Constitution, part of the Texas Bill of

Rights, declares that “[n]o bill of attainder, ex post facto law, retroactive

law, or any law impairing the obligation of contracts, shall be made.”

Tex. Const . art. I, §

16. A retroactive law “takes away or impairs vested rights acquired

under existing laws . . . .”

Paschal v. Perez , 7 Tex. 348, 365 (1851).

A retroactive law means a law applying to things that are

past. DeCordova v. City of Galveston , 4 Tex. 470 ,

475 (1849).

Of course, not every law that affects relationships among parties based upon

events occurring in the past is automatically unconstitutional, just as not

every law that may affect a person’s right to speak, that may affect a

contractual obligation, or that may allow a search of a person’s dwelling

without a warrant, is unconstitutional. See Subaru of Am. v. David McDavid Nissan, Inc. , 84

S.W.3d 212, 219 (Tex. 2002). This Court has articulated

three doctrines that further define the scope of the retroactivity

prohibition. First, a law is not unconstitutionally retroactive unless it

impairs a person’s “vested rights.” E.g. ,

id. at 219. Second, a law is not

unconstitutionally retroactive if it only modifies or reduces the person’s

remedy. E.g. , City of Tyler v. Likes , 962 S.W.2d 489, 502

(Tex. 1997) ; Holder v. Wood ,

714 S.W.2d 318, 319 (Tex. 1986). And finally, even if the law affects a

person’s vested rights, and not a remedy, a law may not violate the

retroactivity prohibition if the government’s interest in protecting society,

based upon its police power, outweighs the individual’s interest in his or her

particular right. E.g. , Barshop v. Medina

Cnty. Underground Water Conservation Dist ., 925 S.W.2d 618 , 633–34 (Tex.

1996). The first two tests are definitional—this Court

has determined that a retroactive law does not implicate article I, section 16

of the Constitution unless the law both affects a vested right and impairs an

actual right, not merely a remedy or a procedure. The third test may

operate as an exception to the rule. Although related, the review of each

doctrine is separate. E.g. , In re A.V. & J.V. , 113

S.W.3d 355, 361 (Tex. 2003) (describing “exceptions” to retroactivity); David

McDavid Nissan , 84 S.W.3d at 219 (analyzing the procedural/remedial test as

part of the vested rights exception because “procedural and remedial statutes

typically do not affect a vested right”). Although the Court has not had

occasion recently to address the specific meaning of article I, section 16’s

prohibition of retroactive laws, our precedents provide a useful roadmap.

1. Vested Rights

Vested rights derive from “[c]onsiderations of fair notice, reasonable reliance,

and settled expectations.” Owens-Corning v.

Carter , 997 S.W.2d 560 , 572–73 (Tex. 1999). “A retroactive

statute only violates our Constitution if, when applied, it takes away or

impairs vested rights acquired under existing law.” David McDavid

Nissan , 84 S.W.3d at 219 (citing Ex parte Abell , 613 S.W.2d 255, 260

(Tex. 1981)); McCain v. Yost , 284 S.W.2d 898, 900 (Tex. 1955).

We explained “vested rights” in Ex parte Abell :

[A]

right, in a legal sense, exists, when, in consequence of the existence of given

facts, the law declares that one person is entitled to enforce against another a

given claim, or to resist the enforcement of a claim urged by another.

Facts may exist out of which, in the course of time or under given

circumstances, a right would become fixed or vested by operation of existing

law, but until the state of facts which the law declares shall give a right

comes into existence there cannot be in law a right; and for this reason it has

been constantly held that, until the right becomes fixed or vested, it is

lawful for the lawmaking power to declare that the given state of facts shall

not fix it , and such laws have been constantly held not to be retroactive

in the sense in which that term is used.

613 S.W.2d at

261 (quoting Mellinger v. City of Houston , 3 S.W. 249, 253 (Tex. 1887))

(emphasis added). “A right cannot be considered a vested right unless it

is something more than “a mere expectation as may be based upon an

anticipated continuance of the present general laws; it must have become a

title, legal or equitable . . . .”

Id. (citation omitted) (emphasis added). This Court has clearly

articulated that “no one has a vested right in the continuance of present laws

in relation to a particular subject . . . . There cannot be a

vested right, or a property right, in a mere rule of law.” Middleton v. Tex. Power & Light Co. , 185 S.W. 556, 560

(Tex. 1916).

The court of appeals called the vested rights analysis “inconsistent and

difficult to use as a guide.” 251 S.W.3d at

526 . Other courts of appeals have called the vested rights analysis

“amorphous.” Sims v. 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 commentators have also

criticized vested rights analyses, preferring an analysis requiring a balancing

of the nature and strength of the public interest served by the statute, the

extent to which the statute modifies or abrogates the pre-enactment right, and

the nature of the right the statute alters. See, e.g. , Owen

Lumber Co. v. Chartrand , 73 P.3d 753 , 755–56 (Kan. 2003); Peterson v.

City of Minneapolis , 173 N.W.2d 353 , 356–57 (Minn. 1969); see also

Charles B. Hochman, The Supreme Court and the Constitutionality of

Retroactive Legislation , 73 Harv. L.

Rev . 692, 697 (1960). And the Court’s opinion, in rejecting a

“bright-line test for unconstitutional activity,” and in recognizing that the

Texas Constitution “does not insulate every vested right from impairment,” seems

to abandon the vested rights analysis altogether, or, at a minimum, detaches the

concept of vested rights from its traditional significance in a retroactivity

analysis. ___ S.W.3d _ __. However, the

doctrine’s difficulty is not a justification to abandon it wholesale. For,

at the core of the vested rights doctrine lies an

extremely important principle—the constitutional retroactivity doctrine does not

protect an asserted entitlement to property one does not own, and until a final

judgment in a case, we do not know whether the lawsuit will prove or refute a

claim to recover.

Applying our century-old jurisprudence, I would hold that an accrued, but

unliquidated cause of action is not a vested right because: (1) the framers of

the Texas Constitution would not have considered an unliquidated cause of action

to be a vested property right entitled to protection under the Retroactivity

Clause; (2) a lawsuit is not a right to recover anything but a contingent and

unliquidated pursuit of a claimed injury that may or may not be successful; and

(3) until and unless a final judgment is rendered in favor of the claimant,

there is no right to recover damages on the claim against another. See Mellinger , 3 S.W. at 252 ; Graham v. Franco , 488

S.W.2d 390, 393 (Tex. 1972); Ex parte Abell , 613 S.W.2d at

260 .

In interpreting the Texas Constitution, our duty is “to ascertain and give

effect to the plain intent and language of the framers of [the constitution] and

of the people who adopted it.” Wilson v. Galveston

Cnty. Cent. Appraisal Dist. , 713 S.W.2d 98,

101 (Tex. 1986) (quoting Gragg v. Cayuga Indep. Sch.

Dist. , 539 S.W.2d 861, 866 (Tex.

1976)). We look

to such

things as the language of the constitutional provision itself, its purpose, the

historical context in which it was written, the intentions of the framers [and

ratifiers], the application in prior judicial decisions, the relation of the

provision to [other parts of the constitution and] the law as a whole, the

understanding of other branches of government, the law in other jurisdictions,

state and federal, constitutional and legal theory, and fundamental values

including justice and social policy.

Davenport

v. Garcia , 834 S.W.2d 4, 30 (Tex. 1992) (Hecht, J., concurring) (citations

omitted).

Examining the state of “vested rights” and what constitutes a vested property

right at the time of the framing of the 1876 Constitution provides important

insight into what the Framers considered protected by the Retroactivity

Clause. Prior to and at the time of the adoption of the Texas Constitution

in 1876, it was well established that the doctrine of vested rights created an

exception to the prohibition on retroactive legislation. See,

e.g. , DeCordova , 4 Tex. at 475; Paschal , 7 Tex. at 365 (“Mr.

Justice Story defines a retrospective law to be, one which takes away or impairs

vested rights acquired under existing law, or creates a new obligation, or

imposes a new duty, or attaches a new disability in relation to transactions

already past.” (citing Soc’y for the Propagation 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 is now, and was

then, considered some form of “property right.” Middleton , 185 S.W.

at 560 . However, at the time of the framing of the cCnstitution of 1876,

an accrued, but unliquidated, cause of action for personal injury, was not “property” in any sense. 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 law tort causes of

action for personal injury could not be assigned and did not survive the death

of the victim. As described by Chief Justice Greenhill:

By the

clear weight of common law authority, a cause of action for personal injury

is not property in any sense, nor for any purpose till it has been reduced to

judgment ; and the judgment, as property, takes its character as separate or

common from the right violated in committing the wrong—the personal injury.

Graham ,

488 S.W.2d at 393 (emphasis added) (quotation omitted); see also State Farm

Fire & Cas . Co. v. Gandy , 925 S.W.2d 696 ,

706–07 (Tex. 1996) (discussing the role at common law regarding the

assignability and survivability of personal injury tort causes of action).

Legislation was required to amend both of those common 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 survival of personal injury

claims); Tex Prop. Code §

12.014(a) (allowing “an interest in a cause of action on which suit has been

filed” to be “sold, regardless of whether the

. . . cause of action is assignable in law or equity”);

Gandy , 925 S.W.2d at 707 (noting that personal injury claims only became

assignable after they could survive the owner’s death).

As in other circumstances, property is treated differently. In 1876,

choses in action for injury to property were considered property, and they were

alienable, assignable, and devisable.

[W]hen the

injury affects the estate rather than the person, when the action is brought for

damage to the estate and not for injury to the person . . . the right of action

could be bought and sold. Such right of action, upon the death, bankruptcy

or insolvency of the party injured, passes to the executor or assignee as a part

of his assets . . . .

Graham ,

488 S.W.2d at 393 (quoting Freeman , 57 Tex. at 158 ); see also

Gandy , 925 S.W.2d at 706 (noting that “[t]he pressures against the rule

of inalienability were commercial and thus affected only debts and other

contract rights that were not personal to the owner and could survive to his

estate upon his death”). The common law in Texas did not consider tort

causes of action for personal injury to be “property,” and “vested rights”—

a concept recognized in common law at the time of the framing

of the 1876 Constitution—are a species of property. Therefore,

under the Texas Constitution, ratified in 1876, an accrued, but unliquidated

personal injury cause of action was not considered to be a “vested right” for

purposes of the Retroactivity Clause. Gandy , 925

S.W.2d at 706 . This reasoning applies with special force to the

Robinsons’ as-applied challenge, because at common law Mr. Robinson’s claims

would not have survived his death. His claims exist today only by virtue

of statutes. The framers of the Texas Constitution would have not believed

that there would be a settled expectation in allowing Mrs. Robinson to continue

to prosecute these uncertain claims, either as Mr. Robinsons’s personal

representative or derivatively through a statutorily created wrongful death

action.

The Court recognizes this historical disconnect, yet dismisses it in a single

sentence, stating simply that “[t]he rights protected by the constitutional

prohibition against retroactive laws are no more limited to those recognized at

the time the prohibition was adopted than are the rights protected by due course

of law.” ___ S.W.3d ___. A court should be

cautious in providing new protections for rights that were not part of the

sphere of rights contemplated by the democratic institutions that enacted the

constitution. See McDonald v. City of Chicago , ___ U.S. ___, 130 S.

Ct. 3020 , 3051–53 (2010) (Scalia, J., concurring) (criticizing the dissent’s

conceptual framework to “‘do justice to [the Due Process Clause’s] urgent call

and its open texture’ by exercising the ‘interpretive discretion the latter

embodies” and to hold that the Clause encompasses “new freedoms the Framers were

too narrow-minded to imagine” (quoting Id. , ___ U.S. ___, 130 S.

Ct. at 3099–100 (Stevens, J., dissenting))).

The right to file a cause of action is not an entitlement to enforce the alleged

claim, but a “mere expectation” subject to numerous contingencies. Ex parte Abell , 613 S.W.2d at 261–62; Mellinger , 3

S.W. at 252–53. A plaintiff’s ultimate recovery is

contingent upon more than just success at trial. For example, it is

contingent upon finding—and serving with process— the right defendant, who may

be an inaccessible foreign defendant, or, as in this case, may be a corporation

long since out of business. See, e.g. , Tex. R. Civ . P. 103–109a (discussing

methods of service); GFTA Trendanalysen B.G.A. Herrdum GMBH & Co., K.G.

v. Varme , 991 S.W.2d 785, 785 (Tex. 1999) (per curiam) (holding

special appearance by foreign corporation did not waive challenge to

jurisdiction). A plaintiff’s recovery may be contingent upon following

particular pretrial procedures, such as the filing of an expert report or

providing discovery. See Tex. Civ. Prac. & Rem.

Code § 7 4.351 (requiring the

service of an expert report by the plaintiff in a health care liability claim

and demanding dismissal of the claim if the report is not timely served);

Cire v. Cummings , 134 S.W.3d 835 , 841–42 (Tex. 2004) (holding that “death

penalty” sanctions of dismissing plaintiff’s claim was warranted because of

plaintiff’s failure to produce audiotapes that would have proved or disproved

plaintiff’s legal malpractice claims). Any informed client knows that

winning a lawsuit, even a seemingly “open and shut” case, is never certain,

particularly when multiple defendants and multiple products may have caused the

same injury, and no reasonable person has a “settled expectation” of achieving

monetary recovery once she discovers a harm inflicted upon her.

Rather, I would hold, consistent with the jurisprudence of the United States

Supreme Court 8 a majority of the federal courts of

appeals, 9 a number of other states, 1 0 and a majority of the courts of appeals

to address the issue in this state, 1 1 that a cause of action becomes a “vested

right” for the constitutional retroactivity analysis when it has reached a final

determination—that is, where it has been reduced to an enforceable judgment in

the plaintiff’s favor. 1 2 As aptly put in an opinion of the

Court of Appeals for the First District:

A “vested

right” implies an immediate right or entitlement—it is not an expectation or a

contingency. . . . Engrained in the concept of vested

rights is the idea of certainty. . . . The filing of a

lawsuit in order to obtain relief or pursue a remedy is generally held not to

create or destroy vested rights; the triggering event for the vesting of a right

is the resolution of the controversy and the final determination—not the filing

of the suit.

Houston Indep. Sch. Dist. v.

Houston Chronicle Publ’g Co. , 798 S.W.2d 580,

589 (Tex. App.—Houston [1st Dist.] 1990, writ denied).

This rule is most consistent with the understanding of vested property rights at

the time of the ratification of the 1876 Constitution. It is consistent

with our subsequent interpretation of the words of the Retroactivity

Clause. 1 3 It is

consistent with our case law and the great weight of court of appeals

opinions. And it is more predictable and avoids confusion and ambiguity

when the Legislature attempts to constitutionally craft a law affecting past

conduct.

This Court’s first significant discussion of retroactivity occurs in

Mellinger v. City of Houston , 3 S.W. 249 (Tex. 1887). The City of

Houston sued to recover taxes on property that would otherwise have been barred

by a subsequently repealed statute of limitations. The Court ruled that

the statute was not to be applied retroactively and thus did not

specifically decide whether Mellinger had a vested right that would be

violated by retroactive application of the law. Id. at

251–52. It then stated that “an action barred by the

statute of limitations was forever barred” and explained that a law may be

unconstitutionally retroactive “if a statute of limitations applied to existing

causes barred all remedy, or did not afford a reasonable period for their

prosecution; or if an attempt were made by law, either by implication or

expressly, to revive causes of action already barred . . . .” Id. at 253–55. Mellinger did not hold

that an unaccrued cause of action was a vested right subject to protection, but

it did indicate that a shortening of the statute of limitations would require a

grace period to allow those who had not filed their cause of action to do so

before the new limitations period would come into effect. Id.

Subsequent cases from this Court recognize that 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). This rule

makes sense because “[t]o permit barred claims to be revived years later would

undermine society’s interest in repose, which is one of the principal

justifications for statutes of limitations.” Baker Hughes , 12 S.W.3d at 4 . In other words, when the statute

extinguished a cause of action, a defendant received a vested right of repose

barring the extinguished claim.

In City of Tyler v. Likes , 962 S.W.2d 489 (Tex. 1997), a case upon which

the Robinsons principally rely, this Court held that a modification of the Tort

Claims Act to provide the city with sovereign immunity from the plaintiff’s

common law tort claims was not constitutionally retroactive. It recognized

that the statute “affect[ed] a remedy” for the plaintiff, which usually does not

implicate the Retroactivity Clause unless the “remedy is entirely taken

away.” Id. at 502 (citation

omitted). We noted that “[t]he Legislature can affect a remedy by

providing a shorter limitations period for an accrued cause of action without

violating the retroactivity provision of the Constitution if it affords a

reasonable time or fair opportunity to preserve a claimant’s rights under the

former law, or if the amendment does not bar all remedy.” Id.

(citing Tex. Water Rights Comm’n v. Wright , 464 S.W.2d 642, 649 (Tex.

1971); Mellinger , 3 S.W. at 254–55). Because the statute became

effective seventeen months after her action accrued, the Court held that the

plaintiff had a reasonable time to preserve her rights, and thus the statute was

not unconstitutional as applied. Id. Likes emphasizes

(as discussed further below) that where the legislation affects the plaintiff’s

remedy without entirely taking it away, the legislation is not

unconstitutionally retroactive. Id.

Finally, this Court has specifically held that the Mellinger

retroactivity exception, requiring that a party receive reasonable time to

preserve its rights, which was relied on in

Likes , has an exception itself. In Owens Corning v. Carter ,

997 S.W.2d 560 (Tex. 1999), the Court upheld a retroactive application of an

amended borrowing statute against a constitutional challenge. At the time

the lawsuit underlying the case was filed, Texas’s borrowing statute provided

that a non-Texan who was injured in a foreign state could bring an action in

Texas, even if the limitations period in the plaintiff’s home state had run, so

long as the action was begun within the time provided by Texas law.

Id. at 565 ; cf. Igal v. Brightstar Info. Tech. Grp., Inc. ,

250 S.W.3d 78 , 90–91 (Tex. 2008) (holding that res judicata bars relitigation of

administratively determined facts and distinguishing a rule where “a claimant

whose action is precluded by limitations in one state court may still be able to

pursue the same action in a different state with a longer limitations period”).

In early 1997, while the plaintiffs’ lawsuits were pending, the

Legislature amended the statute to require, among other things, that the action

is begun in Texas within the time provided both by Texas law and the law of the

foreign state in which the wrongful act, neglect, or default took place.

Carter , 997 S.W.2d . at 572 (citing Tex. Civ. Prac. & Rem. Code §

71.031(a )( 3)). The plaintiffs challenged the law

as unconstitutionally retroactive, and we rejected that challenge. First,

we recognized that the plaintiffs did not have any settled expectations in the

continuance of the current law—the limitations period. Second, we noted

that “requiring a grace period for otherwise time-barred claims would defeat the

very purpose of the borrowing statute: 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. In other words, even if the statute

of limitations “grace period” rule articulated in Mellinger were to

apply, because Alabama plaintiffs applying Alabama law had no expectation in the

continuation of the borrowing statute, “such concerns play a minimal role and do

not justify the application of a grace period.” Id. (citing In

re TMI , 89 F.3d 1106, 1116 (3d Cir. 1996)).

This Court has recognized that contingencies, future expectations, and mere

rules of law do not constitute vested rights. We have upheld retroactivity

challenges only when it interferes with a final judgment, involved the vested

parent-child relationship, or when the statute attempts to revive a cause of

action previously barred 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); Baker Hughes , 12 S.W.3d at

5 . Otherwise, we have held on many occasions that laws, even those

that explicitly apply retroactively, do not violate the Retroactivity Clause 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 , 962 S.W.2d at

502 ; Barshop , 925 S.W.2d at 634 ; 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 at 900 ; City of Dallas v. Trammell , 101 S.W.2d

1009 , 1012–13 (Tex. 1937).

The Robinsons’ expectation that they could recover damages against Crown Cork as

one of the numerous defendants in their lawsuit was low at the time Mr.

Robinson’s common law causes action accrued. Numerous contingencies

surrounded their litigation, not the least of which were the identity of the

potential tortfeasors and proving causation against Mundet from among nine other

defendants. 1 4 If they knew that Mundet was one

of the parties responsible for producing asbestos that Mr. Robinson was exposed

to, it is unlikely that they knew that Mundet had been bought by Crown Cork

decades prior. This is not a situation where the obligations of two

parties are identified by contract, where the government seeks to interfere with

the parent-child relationship, or a party seeks to resurrect a claim long

extinguished by a statute of limitations. Our case law is consistently

hesitant to void statutes outside those categories as retroactive, and this is

not an area into which our jurisprudence should expand. 1 5

Finally, a “brighter-line” view provides more certainty and predictability and

avoids confusion and ambiguity. Causes of action accrue when claimants are

on notice of their injury and have the opportunity to seek a judicial remedy,

when the injury occurs, or at the death of a promisor. Quigley v. Bennett , 227 S.W.3d 51, 58 (Tex. 2007);

Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 221

(Tex. 2003). Certainly, these accruals almost always occur prior to

the filing of a lawsuit (otherwise the claim would not be ripe).

Therefore, accepting the Court’s position that a right to file a lawsuit is a

vested right would, in effect, preclude the Legislature from taking any action

to modify or restrict a cause of action for some lawsuits that had not even been

filed yet. It would further lead to unnecessary uncertainty and

confusion.

The Robinsons did not have a vested right in their accrued causes of action when

Mr. Robinson was diagnosed with mesothelioma. At most, they had contingent

belief that they might be able to recover against Crown Cork or the other

defendants. At the time Mr. Robinson’s cause of action accrued, the

Robinsons had not taken any action in reliance on the law at the time, and they

had no entitlement to the law as it existed. Even after they filed their

action and received a partial summary judgment that Crown Cork was liable as a

successor corporation, they had an unliquidated interest in a personal injury

tort claim that was not recognized as a property right—vested or otherwise—at

common law. The expectation further deteriorated when Mr. Robinson passed

away, and Mrs. Robinson asserted new statutory survival and wrongful death

claims. I would hold that, when the Legislature limited recovery for

asbestos claims only against innocent successor corporations that had caused no

injury to claimants, the Legislature did not deprive the Robinsons of a vested

right of action against Crown Cork, and thus Chapter 149 is not

unconstitutionally retroactive as applied to the Robinsons. The Robinsons

are not foreclosed, however, from going forward with their claims against other

entities, consistent with the Act’s limitations on recovery.

2. Police Power Balancing

The Robinsons argue that there is no room for a balancing of interests in the

retroactivity analysis. They contend that if a right is vested, it cannot

be affected by retroactive legislation. 1 6 Regardless of whether the “vested

rights” threshold exists, a balancing of interests and expectations is an

integral part of retroactivity analysis in Texas jurisprudence, the

jurisprudence of other states, and commentators and scholars in this area.

Although the Court also balances interests, much in the same way I believe our

jurisprudence demands that we balance interests pursuant to the state’s police

power, the Court’s analysis overlooks a few critical

points.

Courts carefully recognized that a retroactive law affecting vested rights may

nonetheless be constitutional if the overriding public purpose of the act and

the Legislature’s legitimate exercise of its police power outweigh the interests

or expectations of the affected party. E.g. , Barshop , 925 S.W.2d at 633–34 . As Justice Oliver Wendell Holmes,

Jr. recognized in the context of a takings suit based on a statute retroactively

preventing a mining company exercising its contractual rights to mine coal under

a house:

Government

hardly could go on if to some extent values incident to property could not be

diminished without paying for every such change in the general law. As

long recognized, some values are enjoyed under an implied limitation and must

yield to the police power. But obviously the implied limitation must have

its limits, or the contract and due process clauses are gone.

Pa. Coal

Co. v. Mahon , 260 U.S. 393, 413 (1920); see also In re Marriage of

Bouquet , 546 P.2d 1371, 1376 (Cal. 1976) (noting that vested rights may be

impaired when “reasonably necessary to the protection of the health, safety,

morals, and general well being of the people”); Phillips v. Curiale , 608

A.2d 895, 902 (N.J. 1992); Hochman, 73 Harv. L. Rev . at 697 (advocating the

abrogation of the “vested rights” concept and instead analyzing U.S. Supreme

Court jurisprudence on retroactivity balancing the nature of the public interest

served, the extent to which the statute modifies the asserted pre-enactment

right, and the nature of the right which the statute alters).

In considering the balancing test to be applied this case, the court of appeals

balanced the proper exercise of the police power (weighing presumably not only

the validity of the exercise, but the importance as well) against the

“detrimental impact on plaintiffs such as the Robinsons,” noting that the

statute was narrowly tailored to protect the most innocent corporations but

still “leaving the pool of potential [asbestos] defendants as large as possible . . . .” 251 S.W.3d

at 532–33. The Court, on the other hand, balances: (1) the

nature and strength of the public interest served by the statute as evidenced by

the Legislature’s factual findings; (2) the nature of the prior right impaired

by the statute; and (3) the extent of the impairment. ___ S.W.3d ___. Using this test, the Court determines

that Chapter 149 is unconstitutionally retroactive as applied to the

Robinsons.

The Court asserts that what “constitutes an impairment of vested rights is too

much in the eye of the beholder to serve as a test for unconstitutional

retroactivity. . . [ and there is] a deep division over

whether a retroactive restriction on a cause of action impairs vested rights.

” __ S.W.3d ___. So t he Court vanquishes the vested rights

jurisprudence because it is too hard to decide and it believes some cases

applying it in the past were inconsistent. What areas of jurisprudence

that span two centuries are not subject to the same criticisms? No one who

has raised children doubts the statement that bathing a baby is challenging and

risky and can be a tough chore, but it must be done. The Court throws out

the baby it once embraced along with the bath water. It will come as no

surprise that the new balancing test the Court establishes for evaluating

retroactive legislation will be fraught with at least as many similar

challenges, but have no precedents for guidance. The balancing test in

Texas retroactivity jurisprudence is, candidly, a new baby in new bath

water. Certainly, there are limits imposed by the Constitution on

legislative power (as well as executive and judicial authority), but as Justice

Scalia insightfully explained about a balancing test under the Commerce Clause

of the U.S. Constitution:

The

problem is that courts are less well suited than Congress to perform this kind

of balancing in every case. The burdens and the benefits are always

incommensurate, and cannot be placed on the opposite balances of a scale without

assigning a policy-based weight to each of them. It is a matter not of

weighing apples against apples, but of deciding whether three apples are better

than six tangerines. Here, on one end of the scale (the burden side) there

rests a certain degree of suppression of interstate competition in borrowing;

and on the other (the benefits side) a certain degree of facilitation of

municipal borrowing. Of course you cannot decide which interest

“outweighs” the other without deciding which interest is more important to you.

And that will always be the case. I would abandon the . . . balancing enterprise [used in

dormant commerce clause cases] altogether. . . .

Dep’t of

Revenue of Ky. v. Davis , 553 U.S. 328, 359 (2008) (Scalia, J., concurring in

part) (emphasis added).

Assuming that the Robinsons’ accrued but unliquidated cause of action for

personal injury is a vested right under the Retroactivity Clause, I consider

whether the Legislature’s exercise of its general police power outweighs the

private interests at issue.

a. The Balancing Test to be Applied

We have not had the opportunity to fully discuss the contours of the police

power exception vis-a-vis a retroactivity challenge. In Barshop v.

Medina Underground Water Conservation District , we upheld the Edwards

Aquifer Act against a retroactivity challenge where landowners above the Edwards

Aquifer argued that the Act affected their vested right to withdraw unlimited

amounts of water from the Aquifer. 925 S.W.2d 618, 634

(Tex. 1996). Without deciding whether rights to groundwater were

vested rights, we stated that because the authority was “required for the

effective control of the [aquifer] to protect . . . life, . . .

water supplies, the operation of existing industries, and the economic

development of the state” and the aquifer itself was “vital to the

general economy and welfare of this state,” that the Retroactivity Clause in the

Texas Constitution does not “absolutely bar the Legislature 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., we upheld retroactive application of a statute allowing the

termination of parental rights for those who are incarcerated for an extended

period of time because the state has a duty to protect the safety and welfare of

its children, and “[t]his ‘valid exercise of the police power by the Legislature

to safeguard the public safety and welfare’ is a recognized exception to the

unconstitutionality of retroactive laws.” 113 S.W.3d 355 , 361 (Tex. 2003)

(quoting Barshop , 925 S.W.2d at 633–34). In Lebohm v. City of

Galveston , we struck down a statute providing the City of Galveston a

complete defense for injury caused by defective roads, streets, sidewalks, or

other public places within the city limits, noting that “[n]o broad public

policy or general welfare considerations are advanced to justify the charter

provision as a reasonable exercise of police power [and w]e can think of none

that could be advanced inasmuch as the operational effect of the provision

extends only to the city limits . . . .” 275 S.W.2d 951, 955 (Tex. 1955).

Other states, however, have created a fuller rubric for examining the balance

between the police power and the prohibition against retroactive laws.

Each formulation seems to balance the nature of the public interest articulated

by the Legislature, the extent to which the statute modifies or abrogates the

vested right, the nature of the right the statute alters, and the fairness of

the application of the new statute. 1 7 The Robinsons’

retroactivity challenge is an as-applied challenge, and thus the Robinsons must

demonstrate that the statute is unconstitutional as it operates in practice

against them. See Tex. Mun. League , 74 S.W.3d at

381 . Therefore, it is appropriate to balance the expectations the

Robinsons lost with the enactment of Chapter 149 against the degree of harm

sought to be protected by the legislative enactment.

When considering the application of the police power, this case is a close

one. It does not involve the potential shortage of water for millions of

people, Barshop , 925 S.W.2d at 634 , and it does not involve the state’s

duty as parens patriae to children, In re A.V. , 113 S.W.3d at

361 . But there are five reasons that Chapter 149 was a legitimate exercise

of the police power, as applied to the Robinsons. The first three

demonstrate that the Robinsons’ expectations in the continued state of the law,

as-applied, are low. The second two demonstrate that the Legislature’s

exercise of the police power was rational, justifiable, and reasonably

limited.

First, at common law, Mr. Robinson’s claims were not “property,” were not

assignable, and were extinguished when he passed away. It is only by

statute that wrongful death claims continue to exist. The Legislature has

broad authority to modify rights it creates by statute. “When a

right or remedy is dependent on a statute, the unqualified repeal of that statue

operates to deprive the party of all such rights that have not become vested or

reduced to final judgment,” and “all suits filed in reliance on the statute must

cease . . . .” Quick v. City of Austin , 7 S.W.3d 109, 128 (Tex.

1998). This Court has further held that “[i]t is generally conceded

that a right of action given by a statute may be taken away at any time, even

after it has accrued and proceedings have been commenced to enforce it.”

Nat’l Carloading Corp. v. Phoenix-El Paso Exp. , 176

S.W.2d 564, 568 (Tex. 1944). Even assuming the Robinsons’ acts of

filing a lawsuit and receiving partial summary judgment resulted in some vested

expectation, the Robinsons’ claims, based in common law

negligence and products liability, may continue only because of the statutory

rights of survival, wrongful death, and successor liability through corporate

merger. Accordingly, the Legislature retained discretion to modify the

nature of their rights through Chapter 149’s restriction on the amount of total

damages recoverable against Crown Cork.

Second, Chapter 149 does not interfere with a claim sounding in contract or a

claim for an injury to real or personal property, which was protected much more

stringently at common law. E.g. , Landgraf , 511 U.S. at 271

(noting that the “largest category of cases in which [the Supreme Court of the

United States has] applied the presumption against statutory retroactivity has

involved new provisions affecting contractual or property rights, matters in

which predictability and stability are of prime importance”). The

Robinsons did not have an established relationship with Crown Cork (or even

Mundet) with predetermined expectations that may have vested upon the occurrence

of a contractual condition. Until this litigation, it is unlikely that the

Robinsons even knew that Crown Cork was a successor to Mundet, or that Mundet

manufactured asbestos products used in the ships on which Mr. Robinson was

stationed. This weakens the expectancy the Robinsons may have had in their

cause of action.

Third, Chapter 149, as applied, does not deprive the Robinsons of their cause of

action against Crown Cork, and it does not deprive the Robinsons of real and

substantial remedies for their alleged wrongs. The Robinsons sued twenty

other defendants in this case and recovered approximately $850,000 from a number

of the defendants for their injuries. They alleged that “[e]ach exposure

to [asbestos-containing products] cause and/or contributed to Plaintiffs’ injuries . . .” and “[t]he actions of each and

every Defendant are a producing and proximate cause of Plaintiffs’ injuries and

damages.” Thus, the Robinsons lost only the right to recover against

Mundet/Crown Cork, which had reached its maximum payout under Chapter 149.

But the statute did not impair their right to seek substantial recoveries

against other defendants, which were involved in the business of asbestos

insulation for the same injuries to Mr. Robinson. There is no vested right

in a remedy, and the Legislature may retroactively modify remedial laws, affect

a court’s jurisdiction, or provide alternative procedures or remedies.

See Tex. Mun. Power Agency v. Pub. Utils. Comm’n , 253 S.W.3d 184, 198 (Tex. 2007);

David McDavid Nissan , 84 S.W.3d at 219 ; Ex parte Abell , 613 S.W.2d

at 260 ; Mellinger , 3 S.W. at 254 . 1 8 This case is a multi-defendant

lawsuit where it is difficult to determine which asbestos products were the

cause of Mr. Robinson’s injuries.

Chapter 149 does not deprive the Robinsons of any cause of action or prohibit

their right to sue any party. It simply cuts off recovery against innocent

defendants at the point that the defendants have paid out for asbestos-related

liabilities the fair market value of the assets of the company acquired.

Importantly, Chapter 149 does not make any defendants immune from suit.

Chapter 149 limits the remedy under prescribed circumstances. It is not

disputed that if, for instance, Mundet’s assets, acquired by Crown Cork, had a

fair market value of $1 billion, Crown Cork could still be liable for damages in

this suit. But because Crown Cork’s asbestos-related liability payments

exceeded the asset value of Mundet, it had reached the statutory limit for its

liabilities as successor to Mundet. Even assuming for the sake of argument

that the removal of recovery against one defendant in such a suit is not merely

a change in remedy but a deprivation of a right, in this case the infringement

was not a complete bar to all recovery for the wrongs alleged.

Accordingly, the Robinsons were able to proceed against other defendants for the

same claims based on admittedly the same injury.

Fourth, the Legislature rationally drew Chapter 149 to address a problem it

perceived as very important—the effects on the Texas economy and employment

because of the bankruptcy of companies that never manufactured, sold, or

distributed asbestos-containing products. The asbestos litigation “crisis”

had been well recognized in academic journals and even court decisions at the

time the Legislature debated and enacted House Bill 4. E.g. , Orszag, 44 S.

Tex. L. Rev . at

1078–81; Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 598 (1997) (“‘The

most objectionable aspects of asbestos litigation can be briefly summarized:

dockets in both federal and state courts continue to grow; long delays are

routine; trials are too long; the same issues are litigated over and over;

transaction costs exceed the victims’ recovery by nearly two to one; exhaustion

of assets threatens and distorts the process; and future claimants may lose

altogether.’” (quoting Judicial Conference Ad Hoc Committee on Asbestos

Litigation, Report to the Chief Justice of the United States and Members of

the Judicial Conference of the United States , at 2–3 (Mar. 1991)));

Humble Sand & Gravel, Inc. v. Gomez , 146 S.W.3d 170 , 203–04 (O’Neill,

J., dissenting) (recognizing the crisis and noting that “the solution to these

problems is legislative, not judicial”); Paul F. Rothstein, What Courts Can

Do in the Face of the Never-Ending Asbestos Crisis , 71 Miss . L.J. 1, 1, 4–9 (2001) (describing

the “ever-expanding” crisis, and the filing of claims “[o]ver $20 billion and

thirty bankruptcies later”). Others examined the potential for unfairness

when a larger corporation’s assets became susceptible to the stress of asbestos

liability from a long-since acquired subsidiary. As stated by one

commentator:

[I]n

asbestos litigation, courts have cast aside the theory behind the [successor

liability] doctrine. Instead of limiting the successor corporation’s

liability to the market value of the acquired corporation, or even to that value

plus any profits generated by the acquisition, courts have allowed successors to

be subjected to limitless liability[, which is a] runaway application of the

successor liability doctrine.

Mark H.

Reeves, Note, Makes Sense to Me: How Moderate, Targeted Federal Tort Reform

Legislation Could Solve the Nation’s Asbestos Litigation Crisis , 56 Vand. L. Rev . 1949, 1972–73 (2003);

see also, e.g., Lester Brickman, The Asbestos Litigation Crisis: Is

there a Need for an Administrative Alternative? , 13 Cardozo L. Rev . 1819, 1831–33 (1992)

(recognizing that the asbestos litigators invoked successor liability laws “so

as to reach into the deeper pockets of the companies that bought far smaller

entities that manufactured asbestos-containing materials regardless of the

culpability of the purchasing companies”).

The Statement of Legislative Intent filed by Representative Nixon recognized an

“unfairness” existing in corporate merger law where a “larger successor can

easily be bankrupted by the asbestos-related liabilities it innocently received

from a much smaller predecessor with which it merged may [sic] decades

ago.” H.J. of Tex., 78th Leg., R.S. 6042, 6043 (2003)

(HB 4 Statement of Legislative Intent). The Statement also

recognized that “Corporations actually in the asbestos business and their

successors through merger have been financially drained by decades of

litigation. As a result, nearly 70 such corporations have sought

protection through bankruptcy. The cost in jobs and pension benefits, to

cite just two examples, has been substantial.” Id. at 6044. These findings were recognized in

the House floor during debate, and were codified into the omnibus statute two

years later that reformulated the method in which asbestos claims are litigated

in Texas. See Act of May 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’s economy and jobs

is certainly a rational basis for enacting legislation, and here there is a

sufficient reason for the Legislature to enact the statute that it did.

Finally, the class of persons protected by the legislation has a rational

relation to the legislative purpose of the legislation. The

Legislature chose to relieve liability on “innocent successors,” companies that

did not manufacture or sell asbestos, but rather acquired a company that

did. And the Legislature mediated the perceived unfairness not by

foreclosing a remedy altogether, but merely limiting the remedy to the fair

value of the acquired company’s assets. Tex. Civ. Prac. &

Rem. Code §§ 149.001,

.003. In this case, that is exactly what

happened. Crown Cork’s total liabilities for the asbestos sold and

manufactured by Mundet far exceeded Mundet’s present-day fair value. Had

Mundet never been acquired by Crown Cork, its payouts for asbestos liability

would have exceeded its value as a going concern, it likely would have been

bankrupt, and, almost certainly, no money would have remained to pay the

Robinsons’ claims if they obtained a judgment against it. See In re

Joint E. & S. Dists. Asbestos Litig. , 237 F. Supp. 2d 297 , 302–06

(E.D.N.Y. 2002) (discussing the factual and procedural background of the

bankruptcy of the Manville Corporation, the establishment of the Manville Trust

following its bankruptcy to pay asbestos claims, and its reformation once it was

discovered that the trust was “deeply insolvent” and that beneficiaries would

not be able to be paid in full, or even paid at all). Crown Cork chose to

acquire Mundet through a statutory merger and not through an asset purchase, but

it remains the purview of the Legislature to modify the legal effect of

continuing liability of such mergers in Texas to avoid the ruin of businesses

possessing assets that had nothing to do with asbestos production or

manufacture. Importantly, the legislation restricts neither the right nor

the remedy of plaintiffs who prove that Crown Cork itself caused them injury; it

only addresses imputed successor liability.

In short, for the reasons articulated above, the Robinsons’ interest in their

accrued, but unliquidated cause of action, is

low. Their vested expectancy, if any, is minimal. Their right of

recovery for the injuries complained of was not foreclosed. And their

relation to Crown Cork was attenuated. The public interest in the

legislation, and its retroactivity, is moderate. The Legislature acted in

response to a known litigation crisis and acted with a reasonable and narrowly

tailored response based on the current climate. Individuals may or may not

personally believe in the wisdom of the particular legislation, but it is not

our province to second-guess legislation because we do not agree with its

policy. See McIntyre v. Ramirez , 109 S.W.3d 741,

748 (Tex. 2003).

b. A Critique of the Court’s Test

Although I disagree with the Court’s analytical framework in arriving at its

three-factor balancing test and the unfoundedly rigorous legal standards it

applies, I do not wholesale disagree with the categories it has set up to

determine whether a retrospective law is unconstitutionally retroactive.

However, the Court’s application of the law to the facts in this case creates

more difficulties for the Legislature and the courts of our state in reviewing

retroactive laws, and creates significant and unnecessary impediments to the

Legislature’s ability to correct law and make beneficial legislative changes in

the future.

First, I disagree with the “compelling reason” standard applied by the

Court. Nothing in our precedent, or any case law, requires such a

heightened review of retroactive legislation. The Court repeatedly

mentions the heavy presumption against retroactive legislation, but the

presumption falls away in this case. The presumption is removed when a

legislature “itself has affirmatively considered the potential unfairness of

retroactive application and determined that it is an acceptable price to pay for

the countervailing benefits.” Landgraf , 511 U.S. at 272–73.

Not only did the Legislature “consider the potential unfairness” in this case,

it voted to apply Chapter 149 retroactively by a supermajority. The

Court’s point that we should view fully retroactive legislation with skepticism

is well taken; however, the presumption against retroactivity is unnecessary

when the Legislature expressly concludes that the statute is to be applied

retroactively. Id. ; accord Lockheed Corp. v. Spink ,

517 U.S. 883 , 896–97 (1996) (“[When] the temporal effect of a statute is

manifest on its face, ‘there is no need to resort to judicial default rules,’

and inquiry is at an end.” ( quoting Landgraf ,

511 U.S. at 280)); Tello v. Dean Witter Reynolds, Inc. , 410 F.3d 1275 ,

1281–82 (11th Cir. 2005) (“[The] presumption and analysis, however, are

unwarranted when Congress states its unambiguous intention that the statute

apply retroactively to pre-enactment

conduct . . . .”). Because it is for the Legislature

to initially determine whether the benefits of retroactive legislation outweigh

the detriments (at least to the statute as a whole), we are not commanded to

review that decision to determine whether their justification was “compelling.”

Second, the Court’s evaluation of the Robinsons’ interest seems to be focused on

its pretrial evaluation of not only the existence of the Robinsons’ claims, but

their strength. The Court argues that the Robinsons’ claims have “a

substantial basis in fact” and that their claims are “mature tort[s], [such

that] recovery is more predictable.” ___ S.W.3d

___. I would not require courts in this state to evaluate

plaintiffs’ claims or defendants’ defenses, under the Retroactivity Clause on

whether the parties are likely to win or their claims have a “substantial basis

in fact.” As any experienced lawyer will acknowledge, the strength of a

claim and the likelihood of success in litigation may be separate and

independent things. This consideration is unwieldy, suggesting that the

Legislature can enact retroactive legislation affecting substantive rights so

long as there is a chance that it will not matter, at the end of the day.

Third, the statute does not affect settled expectations to the degree alleged by

the Court. The Court alleges that the statute will affect the recovery “to

which the Robinsons are entitled,” once again presuming that the Robinsons’

claims against Crown Cork will be successful. ___ S.W.3d

___. As discussed above, the Robinsons had no pre-tort contact with

Crown Cork, and had no settled expectation that Mundet would be acquired by a

richer company able to pay for Mundet’s debts.

Fourth, the Court penalizes the Legislature because the legislation does not

contain expressed “findings to justify Chapter 149.” ___S.W.3d___. The Court does not consider the

well-known facts about the asbestos crisis, Crown Cork’s financial stake,

subsequently codified legislative findings, or the possibility that other

businesses may be subjected to financial ruin, as these facts were not included

in the actual statutory language in House Bill 4. While I agree that such

statutory findings are most helpful in determining legislative intent, United

States v. Lopez , 514 U.S. 549 , 562–63 (1995) (concerning the Commerce

Clause), I am aware of no Texas case that requires them. And, in fact, if

the Legislature were to be so required for every bill in which their police

power may be challenged, certainly the legislative process would be

significantly burdened. Rational basis review does not require the

Legislature to provide any particular purpose; the law will be upheld “if there

is any conceivable state of facts which would support it.” Carmichael v. S. Coal & Coke Co. , 301 U.S. 495, 509

(1937). The law may be valid even if the Legislature did not

consider the valid purposes, but so long as the purpose “may have been

considered to be true.” Nordlinger v. Hahn , 505

U.S. 1, 11 (1992) (citations omitted).

Thus, I believe it is imprudent to abandon our vested rights jurisprudence, and

as applied, the Robinsons’ do not have vested rights in their causes of action

against Crown Cork. Even if the Robinsons’ claims are vested rights, I

would hold that, on balance, the Legislature’s exercise of police power

outweighs the Robinsons’ rights, and thus Chapter 149 does not violate article

I, section 16 of the Texas Constitution.

B. Special Law

Because the Court determines that Chapter 149 is unconstitutionally retroactive

as applied to the Robinsons, it does not address the Robinsons’ second argument,

that Chapter 149 is an unconstitutional “special law.” I would hold that

it is not.

Article III, section 56(b) of the Texas Constitution provides that “where a

general law can be made applicable, no local or special law shall be

enacted.” Tex. Const . art.

III, § 56(b). A “special law” is a statute that

“relates to particular persons or things of a class,” rather than the

class as a whole. Clark v. Finley , 54 S.W. 343, 345 (Tex. 1899)

(emphasis added), cited in Lucas v. United States , 757 S.W.2d 687, 700

(Tex. 1988); see also Ford Motor Co. v. Sheldon , 22 S.W.3d 444, 456 (Tex.

2000) (defining a “special law” as one that “impermissibly distinguishes between

groups on some basis other than geography” (citing Tex. Boll Weevil

Eradication Found. v. Lewellen , 952 S.W.2d 454, 465 (Tex. 1997))). The

prohibition on special laws was added to the Texas Constitution of 1876 as one

of many practical answers to the prevalent abuse of legislative and executive

power that occurred in Texas following the Reconstruction. A.J. Thomas,

Jr. & Ann Van Wynen Thomas, The Texas

Constitution of 1876 , 35 Tex. L.

Rev . 907, 915 (1957). In one session of the post-Reconstruction

legislature five hundred special laws were passed. Id.

Section 56 was thus seen to prevent “logrolling,” 1 9 to ensure against the granting of

special privileges, and to prevent lawmakers from trading votes “for the

advancement of personal rather than public interest.” Miller v. El Paso

Cnty. , 150

S.W.2d 1000, 1001 (1941); Sheldon , 22 S.W.3d at 456 .

In the early twentieth century, the Court developed a test for reviewing whether

a law providing a privilege to a particular class is in actuality a veiled

attempt to provide a privilege to a particular member of the class. See

Sheldon , 22 S.W.3d at 450–51; Maple Run at Austin Mun. Util. Dist. v. Monaghan , 931 S.W.2d

941, 945 (Tex. 1996); Robinson v. Hill ,

507 S.W.2d 521, 525 (Tex. 1974); R.H.O, Recent Case, Statutes—Special

Laws—Reasonableness of Classification , 11 Tex. L. Rev . 134, 134–35 (1932) (collecting

cases describing the legal standard for review of a special law). The

Court first determines whether there is a reasonable basis for the

classification made by the law, and then determines whether the law operates

equally on all within the class. Rodriguez v.

Gonzales , 227 S.W.2d 791, 793 (1950); Sheldon , 22 S.W.3d at

451 . Only if the law fails both tests is it a special law and

unconstitutional.

The determination of a “reasonable basis” for the classification is not an

invitation for the Court to engage in weighing the relative pros and cons of a

particular policy choice made by the Legislature. As stated by this Court

over 100 years ago:

Now, we do

not propose to be led off into any extended discussion as to what is a proper

class for the application of a general law. The tendency of the recent

decisions upon the subject, as it seems to us, is to drift into refinements that

are rather more specious than profitable. . . . To what

class or classes of persons or things a statute should apply is, as a general

rule, a legislative question. When the intent of the legislature is clear,

the policy of the law is a matter which does not concern the courts.

Clark ,

54 S.W. at 345–46. We do not analyze the Legislature’s classification to

determine whether the classification is a good or bad idea. See Smith

v. Davis , 426 S.W.2d 827, 831 (Tex. 1968).

Rather we analyze to ensure that the classification is not made to “evade the

prohibition of the constitution as to special laws by making a law applicable to

a pretended class, which is, in fact no class . . . .” Clark , 54

S.W. at 345 . We presume the statute is valid, and “a mere difference of

opinion” between the Court and the Legislature will not be sufficient to

overcome the presumption of validity. Smith , 426

S.W.2d at 831 .

The Rodriguez test’s two-part structure provides the framework to

determine whether a class is a “pretended class.” The first part of the

test examines the delineated class vis-a-vis the purpose of the

legislation. Rodriguez , 227 S.W.2d at

793 . For example, if the purpose of the law is to provide tax

relief to businesses in the sports entertainment industry, but the tax relief is

given only to businesses belonging to or supporting teams in leagues or

conferences with “National” in their name but not with leagues or conferences

with “American” in their name, the classification would likely have no rational

relation to the purpose of the statute.

The second part of the test examines whether similarly situated parties are

treated similarly under the classification, or whether the classification makes

an irrational category considering the intent of the statute. See,

e.g. , Rodriguez , 227 S.W.2d at 794 (holding that statute setting out

special procedures for collecting delinquent taxes on parcels of land greater

than 1,000 acres situated in counties bordering Mexico and whose title emanated

from the King of Spain as an unconstitutional special law, as there was “no

substantial difference in the situation or circumstance of border counties

relating to suits for delinquent taxes”); Miller , 150 S.W.2d at 1002–03

(holding as unconstitutional a statute providing an economic development tax

only in counties meeting population requirements, due to the fact that the

statute’s classification was not distinct in any substantial manner from other

counties in the state). Back to the example, the tax relief statute above

would likely be unconstitutional, as its effect is to provide relief to the

Houston Astros and the Dallas Cowboys and the businesses that support them (as

the Astros are a member of the National League, and the Cowboys are a member of

the National Football Conference), but would not provide relief to supporters of

the Houston Texans and the Texas Rangers (as the Texans are a member of the

American Football Conference and the Rangers are a member of the American

League). The classification is a “pretended class” because the

classification has no relation to the purpose of the law and treats similarly

situated teams differently. Although the Court does not defer to the

Legislature to determine whether a law is general or special, it does defer to

the Legislature’s policy choices and 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 our statutes or to weigh the

effectiveness of their results; rather, our task is to interpret those statutes

in a manner that effectuates the Legislature’s intent.”).

In this case, the purpose of the law has been clearly expressed by the

Legislature—to eliminate the unfairness created when a corporation merged with a

smaller corporation that had previously been engaged in the manufacture or sale

of asbestos is exposed to asbestos liability exceeding the value of the acquired

corporation, and to save such a corporation from bankruptcy. H.J. of Tex., 78th Leg., R.S. 6042, 6043 (2003) (HB 4 Statement of

Legislative Intent). To address concerns in the Legislature, the

measure was restricted in three ways. First, the original transfer of

liabilities had to occur prior to May 13, 1968. This was the date in which

the American Conference of Governmental Industrial Hygienists first adopted a

change in the recommended threshold limit for asbestos in the air of a

workplace. Second, to get the benefit of the legislation, the acquiring

corporation could not continue in the asbestos business. Third, if the

successor continued to control a premises after the

merger, the successor would continue to be liable for any asbestos-related

premises liabilities it received from the predecessor for injuries caused on

those premises. Id. at 6043–44.

The Robinsons attack these limitations as pretexts to limit relief just to Crown

Cork. However, it is clear that, regardless of the wisdom of the

classifications, the classifications are rationally related to the objective of

the bill. The act sought to protect “innocent” successor

corporations. To define the most “innocent,” the Legislature chose to

limit mergers occurring prior to May 13, 1968. The Robinsons claim that

this date was chosen arbitrarily and that the dangers of asbestos in the

workplace were known prior to the ACGIH’s modification. However, this is

the date decided upon by the Legislature, and it has a rational relationship to

the legislation—the Legislature could have, no doubt, chosen any number of

cutoff dates to decide which successor corporations are the most “innocent,” and

while others may disagree as to the appropriateness of the date, such would

merely be a “difference of opinion,” and insufficient basis for overturning the

statute. Smith , 426 S.W.2d at 831 ; see also Exxon Mobil Corp. v.

Altimore , 256 S.W.3d 415 , 420–22 (Tex. App.—Houston [14th Dist.] 2008, no

pet.) ( discussing , in the context of the basis for a

punitive damages award “scientists’ knowledge of the risk to refinery workers”

of asbestos, and noting studies originating in the 1940s, 1950s, 1960s, and

1970s). Similarly, the second and third limitations also seek to limit

protection to those businesses that were not involved with the manufacture or

distribution of asbestos, or those that actually had asbestos on the

premises. This is also a rational distinction: The Legislature

sought to protect those businesses that had nothing to do with asbestos prior to

a merger, had nothing to do with asbestos after the merger, and had no asbestos

on its premises. The classifications are rational.

The Robinsons also argue that the law is a “special law” because it created a

class of one—evidenced by (a) the fact that Crown Cork did not identify any

other businesses to which the law applied, (b) Crown Cork’s lobbying for the law

in Texas and other states, and (c) statements by members of the Legislature that

they were addressing “the Crown Cork and Seal Issue.”

The Robinsons cite to Miller’s statement that classification “must be

broad enough to include a substantial class . . .” to mean that it is the burden of

the proponent of the law to prove that the law must apply to more than one

person. Miller , 150 S.W.2d at 1001 .

On the contrary, the size of the class, itself, is not determinative.

While courts must be more exacting in reviewing a law that appears only to apply

to one party, a “substantial” class does not equate to a class with thousands,

hundreds, or even dozens of members. There are no doubt many Texas laws

that apply to a small subset of the population; rather, a “substantial” class is

one that has substance—a real class of persons or entities, as opposed to a

“pretended” class created as a pretext.

The Robinsons’ evidence of pretext is no evidence at all. The Robinsons’

bare argument that Crown Cork is a “class of one” is insufficient. First,

it is not Crown Cork’s, but the Robinsons’ burden to demonstrate that the law is

a special law. Second, even if the Robinsons could show that the law

currently applied only to Crown Cork, that alone would

not fulfill the burden that the law was special. As discussed above, the

Robinsons must show that the classifications made by the Legislature were not

rationally related to the objective of the law, and the Robinsons must show that

the legislation has treated a similarly situated successor company differently

from Crown. They have done neither.

The only other evidence the Robinsons provide is evidence of legislative

history. The Robinsons argue that the law is special because Crown Cork

lobbied for the act and that at least one legislator called the Act the “Crown

Cork issue” in a committee hearing. This evidence is also

unavailing. First, as a beneficiary of this law, Crown Cork would

certainly lobby for its enactment. But then again, public interest groups,

individuals, and businesses regularly lobby for legislation that affects them

directly or as an industry, and lobbyists regularly draft legislation for

legislators. See, e.g. , Victoria F. Nourse & Jane S. Schacter,

The Politics of Legislative Drafting: A Congressional Case Study ,

77 N.Y.U. L. Rev . 575, 583, 587,

591 (2002) (noting a number of responses by legislative aides that lobbyists

regularly draft the text of bills debated in the Senate Judiciary Committee and

discussing an account by a legislative aide where a companion bill was

“negotiated and drafted by lobbyists and introduced with only ‘minor

changes’”). Many involved in the “sausage making” 2 0 task of developing law use lobbyists to

draft the text of bills because lobbyists provide valuable information and

perspective on the bills being introduced. Id. at

583. Cognizant as I am of the need to avoid the gifts given by the

Legislature to favored individuals, the Robinsons must come up with more

evidence than the mere fact that Crown Cork was involved in the passing, or even

the drafting, of the act in question.

Likewise, the Robinsons’ evidence of Senator Ratliff’s statement is also not

evidence of House Bill 4’s “special law” status. The senator described

Article 17 as “the Crown Cork and Seal asbestos issue.” First, the

statement is no evidence because, as this Court has repeatedly stated, a single

statement by a single legislator does not evidence legislative intent and does

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 La Lastra , 852

S.W.2d 916, 923 (Tex. 1993). Second, to countenance this statement

as even “persuasive authority as might be given the comments of any learned

scholar of the subject,” De La Lastra , 852 S.W.2d at 923 , would be to do

a disservice to the legislative process. Countless laws are either

championed by a particular person or entity or arise out of the circumstances

that will be or have been experienced by an individual or a business. 2 1

In sum, the

Robinsons meet neither of the factors in the Rodriguez test. The

Robinsons have not shown that the Legislator’s classifications are irrational or

not related to the objective of the statute, nor have they shown that the

Legislature has created a “pretended” class by excluding similarly situated

entities.

III. CONCLUSION

I would hold that Chapter 149 is not an unconstitutional special law, and is not

unconstitutionally retroactive as applied to the Robinsons because the law

limited available remedies and did not destroy the Robinsons’ vested

rights. I therefore respectfully dissent.

_______________________________________

Dale Wainwright

Justice

OPINION DELIVERED: October

22, 2010

1

The term “statutory merger” is used to distinguish business mergers made

pursuant to the statutory scheme of the state of incorporation from other,

nonstatutory forms of combinations, for example asset-purchase and

stock-purchase transactions. 20A Robert W. Hamilton, Elizabeth S. Miller, &

Robert A. Ragazzo , Texas Practice

Series: Business Organizations § 43.2 (2d ed.

2004).

2

The House also defeated an amendment making

the bill applicable only to successor liabilities assumed or incurred after the

effective date of the act. H.J. of Tex., 78th Leg., R.S.

818–19 (2003).

3

The act also provides a number of exceptions,

excluding, among other things, workers’ compensation claims, an insurance

corporation, a claim made in a bankruptcy proceeding begun prior to April 1,

2003, claims for premises liability, or claims against a “successor that, after

merger or consolidation, continued in the business of mining asbestos or in the

business of selling or distributing asbestos fibers or in the business of

manufacturing, distributing, removing, or installing asbestos-containing

products which were the same or substantially the same as those products

previously manufactured . . . by the transferor.” Id. § 149.002(b).

4

The Robinsons’ remedies against the other

defendants pending at the time of the enactment of the statute was not limited by Chapter 149, but their remedy against

Crown Cork was. The Robinsons eventually recovered at least $850,000 from

other defendants sued in addition to Crown Cork.

5

On November 16, 2003, after the trial court

entered its amended order granting summary judgment, John Robinson died.

Mrs. Robinson continued to prosecute her claims individually and as

representative of the estate of John Robinson. Because the claims still

live independently, one for Mrs. Robinson and one for the estate of John

Robinson, this opinion will refer to petitioners as the

Robinsons.

6

The Court astutely notes that, due to the odd

procedural posture of the case, as well as Mr. Robinson’s untimely passing, it

is unclear which legal claims are being allegedly retroactively

extinguished. Because the parties raise only

whether Chapter 149 is unconstitutionally retroactive as applied to Mr.

Robinson’s common law claims (kept alive through the survival statute and

pursued derivatively through the wrongful death statue) I, as the Court, address

only those arguments. However, as more fully discussed below, the fact

that the Robinsons’ claims are statute-based reinforces the conclusions of this

vested rights analysis.

7

See also Milam Cnty. v. Bateman , 54 Tex. 153, 163 (1880); Moore v. Letchford , 35

Tex. 185, 222 (1871) (Ogden, J., dissenting) (noting that the Legislature may

pass retrospective legislation that “would regulate” and neither“create nor

destroy vested rights” (emphasis added)) ; Hamilton v. Avery , 20 Tex.

612 (1857); Nichols v. Pilgrim , 20 Tex. 426 , 428–29 (1857) (discussing

whether an executed contract for the sale of land was a “vested right” allowing

suit for partition of land, notwithstanding the enactment of the statute of

frauds).

8

See, e.g. , Landgraf v. USI Film Prods. , 511 U.S. 244, 272

(1994) (recognizing that the “ constitutional impediments to retroactive

civil legislation are now modest”); see also Hochman, 73 Harv. L. Rev. at 717 & n.135

(“[T]he Court has many times sustained the application of a retroactive statute

to an accrued cause of action.” (citing Louisville & Nashville R.R. v.

Mottley , 219 U.S. 467 (1911))).

9

Hammond v. United States, 786 F.2d 8, 12 (1st Cir. 1986) (“The question whether

the rights asserted in plaintiff’s state-law causes of action are ‘vested’

cannot be answered by looking to see whether suit had already been

filed . . . . No person has a vested interest in any

rule of law [and] this is true after suit has been filed and continues to be

true until a final, unreviewable judgment is obtained.” (citations and

quotations omitted)); In re TMI , 89 F.3d 1106 , 1115 n.9 (3d Cir. 1996)

(distinguishing cases holding accrued causes of action to be vested rights,

calling them “contrary to current federal constitutional precedent that finds no

vested right in a tort cause of action before final judgment); Zeran v. Am.

Online, Inc. , 129 F.3d 327, 335 (4th Cir. 1997) (“No person has a vested

right in a nonfinal tort judgment . . . .”); Arbour v.

Jenkins , 903 F.2d 416, 420 (6th Cir. 1990) (quoting Sowell );

Konizeski v. Livermore Labs, (In re Consol. U.S. Atomospheric Testing

Litig.) , 820 F.2d 982, 989 (9th Cir. 1987) (quoting Hammond );

Grimesy v. Huff , 876 F.2d 738 , 743–44 (9th Cir. 1989) (reviewing vested

rights cases under a Fifth Amendment takings analysis); Taxpayers for the

Animas-La Plata Referendum v. Animas-La Plata Water Conservancy Dist. , 739

F.2d 1472 , 1477–78 (10th Cir. 1984) (holding that “inchoate” rights, such as the

right to pursue legal remedies are not “vested” for purposes of the Colorado

state and federal constitutions); Salmon v. Schwartz, 948 F.2d

1131, 1143 (10th Cir. 1991) (quoting Arbour and Sowell ); Sowell

v. Am. Cyanid Co. , 888 F.2d 802 , 805 (11th Cir. 1989) (“The fact that the

statute is retroactive does not make it unconstitutional [because] a legal claim

affords no definite or [enforceable] property right until reduced to a final

judgment.”); see also Lunsford v. Price , 885 F.2d 236 , 240–41(5th Cir.

1989) (holding the applicability of a statute to pending claims was 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 the federal

constitution); Symens v. SmithKline Beecham Corp. , 152 F.3d 1050 , 1056

n.3 (8th Cir. 1998) (noting that federal regulations, which may preempt state

law claims would apply to plaintiffs’ tort and implied warranty claims “because

plaintiffs had no vested rights in these unasserted claims at the time [the]

preemption was modified” (citing Landgraf , 511 U.S. at 269, 273 )).

But see Davis v. Blige , 505 F.3d 90, 103 (2d Cir. 2007) (recognizing, in

a copyright case applying patent law, that a retroactive assignment destroys an

owner’s “valuable and vested right to enforce her claim”); Hoyt Metal

Co. v. Atwood , 289 F. 453 , 454–55 (7th Cir. 1923) (deciding whether a

judgment is to be accorded the status of a vested right and stating

“[t]hat an accrued cause of action is a vested property right is well

settled . . . . Certainly a judgment is a vested property

right.”); De Rodulfa v. United States , 461 F.2d 1240, 1257 (D.C.

Cir. 1972) (indicating that “a vested cause of action, whether emanating from

contract or common law principles, may constitute property beyond the

power of the legislature to take away,” but not so holding because no cause of

action—interference with contract—existed in the case (emphasis

added)).

10 I concede

that a majority of other states to directly address the issue have held that an

accrued, yet unliquidated cause of action is a “vested right” under either

retroactivity or due process analyses. However, a number of other states

provide a more nuanced view. For example, Colorado, one of the

jurisdictions whose constitution also includes a prohibition on retroactive

legislation, has held that a “vested right” is “one that is not dependent

on the common law or statute but instead has an independent existence.” In re Estate of DeWitt , 54 P.3d 849, 853 (Colo.

2002). The Colorado Supreme Court would determine this “independent

existence” by balancing: “(1) whether the public interest is advanced or

retarded; (2) whether the statute gives effects to or defeats the bona fide

intentions or reasonable expectations of the affected individuals; and (3)

whether the statute surprises individuals who have relied on a contrary

law.” Id. Nonetheless, the court, and the state’s lower

courts, do not recognize that an accrued cause of action is a vested right per

se. City of Greenwood Vill. v. Pets. for the

Proposed City of Centennial , 3 P.3d 427 , 445–46 (Colo. 2000)

(“[C]ontemporary precedent also demonstrates that expectations of parties to

litigation are not equivalent to vested rights.”); see also Miller v.

Brannon , 207 P.3d 923 (Colo. App. 2009) (“A vested right must be a contract

right, a property right, or a right arising from the transaction in the nature

of a contract which has become perfected to the degree that it is not dependent

on the continued existence of the statute or common law .” ( emphasis added) ( quotations

omitted)).

11

See Houston Indep. Sch. Dist. v. Houston

Chronicle Publ’g Co. , 798 S.W.2d 580, 589 (Tex. App.—Houston [1st Dist.]

1990, writ denied); see also Walls v. First State Bank of Miami , 900

S.W.2d 117, 122 (Tex. App.—Amarillo 1995, writ denied) (holding that retroactive

application of federal law shielding employees of a financial institution for

reporting suspected wrongdoing was properly applied to lawsuit for malicious

prosecution and defamation that had been filed prior to the enactment of the law

and stating that “only final, nonreviewable judgments will be accorded the

dignity of vested, constitutionally guarded rights, and a law will be deemed to

have a prohibited retroactive effect only when it impairs those rights”);

Tex. Gas Exploration Corp. v. Fluor Corp. , 828 S.W.2d 28, 32 (Tex.

App.—Texarkana 1991, writ denied) (“A party has no vested right to a cause of

action; neither the Constitution of the United States nor this state forbids the

abolition of common-law rights to attain a permissible legislative objective.”);

Aetna Ins. Co. v. Richardelle , 528 S.W.2d 280, 285 (Tex. Civ. App.—Corpus

Christi 1975, writ ref’d n.r.e.) (noting that even though a plaintiff’s cause of

action had accrued against a minor child, the plaintiff could not proceed

because the Legislature amended the statute to foreclose recovery against

children the defendant’s age and the plaintiff “had not acquired a ‘title . . . to the present or future

enforcement of a demand’” (quotations omitted)); ain Satterfield v. Crown

Cork & Seal Co. , 268 S.W.3d 190 , 221–41 (Tex. App.—Austin 2008, no pet.)

(Law, C.J., dissenting) ( noting that the

plaintiffs had no vested right in the successor liability remedy against

Crown because vested rights are “certain and immediately enforceable,” the

successor liability theory does not create a cause of action, and economic

interests could be considered in police power balancing). But see

Satterfield , 268 S.W.3d at 206–09 (holding that plaintiff in asbestos suit

had vested rights in accrued cause of action).

12 The

Open Courts Clause of the Texas Constitution, not at issue in this case, may

impose limitations on the extent to which unliquidated 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 a well-established common law cause of action cannot be effectively

abrogated by the legislature absent a showing that the legislative basis for the

statute outweighs the denial of the constitutionally-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 and quoting

Mellinger , alleges that the Retroactivity Clause “goes beyond federal

guarantees of property and due process.” ___ S.W.3d ___ (Medina, J.,

concurring). While Abell recognized that proposition, it did so

while simultaneously recognizing that “[i]n practice . . . retroactive lawmaking has not

been viewed as the gross abuse of power once assumed.” Ex parte

Abell , 613 S.W.2d at 259–60. Further, commentators and jurists from

other states have more recently recognized that specific retroactivity clauses

should not be read overly broadly. See, e.g. , 1 George D. Braden, The Constitution of the

State of Texas: An Annotated and Comparative Analysis 58 (1977) (“The

other prohibition concerning ‘retroactive laws’ seems to spring from a general

suspicion regarding all retroactive laws of which the three mentioned [ex post

facto, bills of attainder, and laws impairing the obligation of contracts] were

notorious examples. Early judicial restriction of the scope of ex post

facto laws to retroactive criminal laws may have prompted a desire to

re-establish the broader sweep, which the prohibition had in the minds of some

people, by general condemnation of retroactive laws.”); see also id.

at 59 (discussing the Mellinger dicta also

quoted by Justice Medina and

commenting that the authoring justice’s argument “excluded not only the specific

guarantees of section 16 but the due course of law limitation as well.

Although he perceived the growing scope of due process of law at the time of his

opinion, Justice Straton could not have foreseen its remarkable subsequent development . . . . Thus, it has

been said that laws are retroactive in the sense of section 16 only when they

contravene another specific prohibition of the Constitution.”); Bryant Smith,

Retroactive Laws and Vested Rights , 5 Tex. L. Rev . 231 (1926) (noting that,

in most states at the time, the explicit retroactive law provisions in other

states’ constitutions were coterminous with due process). Regardless of

whether the Retroactivity Clause in section 16 deserves a broader read than just

due process, there is nothing in the text of the Constitution to suggest that it

should apply to contingent expectancies such as exist in this

case.

14 The causation

question to the jury may have listed ten potential defendants, the number

remaining at the time Crown Cork’s partial summary judgment motion was

granted.

15 Justice Medina

argues that the final judgment rule is

inappropriate because “it is the right to sue itself—the lawsuit—that is being

taken away, not the final outcome.” ___ S.W.3d ___ (Medina, J.,

concurring). On the contrary, the Robinsons sued Crown Cork. There

were pleadings, discovery, and motion practice. Crown Cork had to prove

that it was entitled to the Chapter 149 defense, which it did through summary

judgment. In fact, if Crown Cork’s prior payout had been below Mundet’s

fair value, the Robinsons could recover against Crown Cork, but that question

must be established in the lawsuit. To the extent there is an expectation

to file and prosecute a cause of action (and not to recover on a claim), that

expectation was satisfied in this case.

16 The Robinsons

also argue that article I, section 29 of the Texas Bill of Rights, compels that

result. I agree with the Court that section 29 does not determine whether

and how the substantive portions of the Bill of Rights apply. ___ S.W.3d ___. Furthermore, section 29 is generally

cited only for the proposition that courts have the power to declare laws

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 , 76 S.W.2d 1007,

1011 (Tex. 1934) (citing to section 29, among other things, to depart from the

U.S. Supreme Court’s view and declare unconstitutional a law impairing the

obligation of contracts); see also City of Beaumont v. Bouillion , 896

S.W.2d 143 , 148–49 (Tex. 1995) (“Section 29 has been interpreted as follows: any

provision of the Bill of Rights is self-executing to the extent that anything

done in violation of it is void.”); Republican Party of Tex. v. Dietz ,

940 S.W.2d 86 , 89–91 (Tex. 1997) (analyzing section 29 and holding that the

Texas Bill of Rights protects against government, not private,

conduct).

17 E.g. ,

Phillips , 608 A.2d at 902 (articulating a similar test balancing:

“(1) the nature and strength of the public interest served by the statute, (2)

the extent to which the statute modifies or abrogates the asserted right, and

(3) the nature of the right that the statute alters” and discussing whether the

application of the statute would result in “manifest injustice”); Estate of

DeWitt , 54 P.3d at 855 (balancing the vested right against public health and

safety concerns, the state’s police powers to regulate certain practices, and

other public policy concerns, so long as there is a rational relationship

between the government interest that is asserted and the retroactive

legislation); Marriage of Bouquet , 546 P.2d at 1376 (examining “the

significance of the state interest served by the law, the importance of the

retroactive application of the law to the effectuation of that interest, the

extent of reliance upon the former law, the legitimacy of that reliance, the

extent of actions taken on the basis of that reliance, and the extent to which

the retroactive application of the new law would disrupt those actions”);

Reed v. Brunson , 527 So. 2d 102 , 115–16 (Ala. 1988) (eliminating

co-employee lawsuits, while noting that “[i]t is certainly within the police

power of the legislature to act to enhance the economic welfare of the citizens

of this state [by eliminating the common law cause of

action]. . . in an attempt to eradicate or ameliorate what it

perceives to be a social evil”); Mergenthaler v. Asbestos Corp. of Am. ,

534 A.2d 272 , 276–77 (Del. Super. Ct. 1987) (noting that the determination of

retroactivity “rests on subtle judgments concerning the fairness of applying the

new statute” and noting that the considerations of vested rights “may be

moderated or overcome if the statute is in furtherance of the general police

power for concerns of public, health, morals, safety, or general welfare” and

holding retroactive application of workers’ compensation benefits to asbestos

claimants who were exposed prior to coverage was not unconstitutionally

retroactive).

18 Courts have

repeatedly recognized that a statute depriving a court of jurisdiction to hear a

dispute does not implicate a vested right. David McDavid Nissan , 84

S.W.3d at 220 ; In re A.D. , 73 S.W.3d 244, 249 (Tex. 2002); see also

Landgraf , 511 U.S. at 274 (recognizing that statutes that confer or oust

jurisdiction are regularly applied retroactively). If the mere right to

sue were the constitutionally protected interest, then the Robinsons would have

it, and those whose claims were no longer justiciable in a court of competent

jurisdiction would not. Therefore, the right protected by the

Retroactivity Clause must truly be focused on the substance of the claim—the

actual recovery—rather than the right to get to a recovery.

19 “Logrolling” has been defined by our Courts of

Appeals as “the inclusion in a bill of several subjects having no connection

with each other in order to create a combination of various 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 rather than public interests,” Diaz v. State , 68 S.W.3d 680, 684

(Tex. App.—El Paso 2000, pet. denied).

20 “Laws, like

sausages, cease to inspire respect in proportion as we know how they are

made.” John Godfrey Saxe, as quoted in The Yale Book of Quotations 86

(2006). This quotation has previously been attributed to Otto von

Bismarck. See id. ; In re Graham , 104

So. 2d 16, 18 (Fla. 1958).

21 No one could

claim that the Brady Handgun Violence Prevention Act of 1993, 18 U.S.C.

§ 921–22, advanced by former White House Press Secretary James Brady and

his wife Sarah, or the proliferation of Megan’s Laws, e.g. , N.J. Stat. § 2C:7-1 to 11, dealing with

sex offender registration throughout the country, named after Megan Kanka, a

minor who was sexually assaulted in New Jersey, or even the Copyright Term

Extension Act, which was sometimes known as the “Mickey Mouse Act,” because

Disney lobbied extensively for the act and because the act prevented the

original Mickey Mouse cartoon “Steamboat Willy” from entering the public domain,

see Ben Depoorter, The Several Lives of Mickey Mouse: The

Expanding Boundaries of Intellectual Property Law , 9 Va. J.L. & Tech, no. 4, Spring 2004, at 3 n .2 , would be special laws merely

because an individual, or even Disney, lobbied for them so strenuously that the

bill was eventually named for them.