Article I, Section 16 of the Texas Constitution ("Bills of Attainder; Ex Post Facto or Retroactive Laws; Impairing Obligation of Contracts")

Adopted February 15, 1876:

No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.

Editor Comments

The federal constitution expressly prohibits the states from enacting bills of attainder, ex post facto laws, and laws impairing the obligation of contracts. However, it does not directly address retroactive laws.

Note that, in the 1934 Travelers' Insurance Co. v. Marshall decision referenced below, the Texas Supreme Court specifically held that this section's provision regarding the impairment of contracts was stricter than its federal counterpart. Cf. Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 415-16 (1934) ("Appellant contests the validity of Chapter 339 of the Laws of Minnesota of 1933, p. 514, approved April 18, 1933, called the Minnesota Mortgage Moratorium Law, as being repugnant to the contract clause (Art. I, § 10) and the due process and equal protection clauses of the Fourteenth Amendment, of the Federal Constitution.").

Attorney Steve Smith

Recent Decisions

  • Hogan v. S. Methodist Univ., ___ S.W.3d ___, ___ (Tex. 2024) ("Instead, such prohibitions should not be interpreted 'without regard to the intent' for which they were enacted. Id. The framers of the 1876 Constitution knew that Texas courts would likely take DeCordova's view of constitutional bans on retroactive laws when they wrote article I, section 16. They could have reacted to DeCordova by . . . . We should therefore reject the suggestion that the 1876 Constitution's prohibition on retroactive laws was understood at the time of its adoption as a categorical prohibition on all backward-looking legislation.")
  • Fire Prot. Serv., Inc. v. Survitec Survival Prods., Inc., 649 S.W.3d 197, 203 (Tex. 2022) ("Neither party disputes that their agreement was at-will such that, before the Act's effective date, either party could terminate the agreement at any time for any reason (or no reason) without penalty. Once the Act became effective, however, Survitec could no longer terminate the agreement without good cause. Tex. Bus. & Com. Code § 57.153. Survitec thus argues that the Act is unconstitutionally retroactive because it 'eliminated Survitec's right to have an at-will relationship with FPS.' We disagree.")
  • Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 708 (Tex. 2014) (footnote omitted) ("We have only upheld constitutional retroactivity challenges four times. In two of those cases, we upheld retroactivity challenges because amendments to statutes of limitations revived claims the previous statutes barred. And in one case, the Legislature extinguished a taxpayer's valid limitations defense to a governmental . . . . We have upheld statutes with shorter grace periods, and we cannot say the three-year grace period M.R. possessed rendered the statute unconstitutional as applied in light of its compelling public interest.")
  • Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 136 (Tex. 2010) (footnote omitted) ("Robinson, like the dissenting opinion in the court of appeals, argues that the test is simply whether vested rights have been impaired . . . . Crown counters that the majority opinion in the court of appeals was correct in focusing instead on the reasonableness of the Legislature's exercise of its police power; the prohibition against retroactive laws does not invalidate a proper exercise of that power despite its impairment of private rights. As each position finds support in our case law, we begin by returning to first principles.")
  • Johnson v. Davis, 178 S.W.3d 230, 240 (Tex.App.–Houston [14th Dist.] 2005, denied) (citations omitted) ("At common law, attainder was 'the act of extinguishing a person's civil rights when that person is sentenced to death or declared an outlaw for committing a felony or treason.' A bill of attainder is a legislative act that applies to a named individual or to an easily identified member of a group in such a way as to inflict punishment without a trial. . . . Because the DNA database system does not involve punishment, it does not violate the prohibition against bills of attainder. Accordingly, Johnson's claim lacks merit.")
  • Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 633-35 (Tex. 1996) ("Plaintiffs claim the Act violates this provision because it is an ex post facto law, a retroactive law, and it impairs the obligation of contracts. We will examine each of these claims in turn. . . . Accordingly, we determine that the Act is not invalid under the contract clause because it is a valid exercise of the police power necessary to safeguard the public safety and welfare. The Act is therefore not subject to any of Plaintiffs' facial attacks under article I, section 16 of the Texas Constitution.")

Historic Decisions

  • Grimes v. State, 807 S.W.2d 582, 586 (Tex.Crim.App. 1991) ("Since Texas first became a State, we have constitutionally prohibited the making of ex post facto legislation, see Texas Constitution Article I, Section 16, (1845) Texas Constitution Article I, Section 14 (1861, 1866 and 1869); Texas Constitution Article I, Section 16 (1876), and in so doing Texas courts have followed the Supreme Court's analysis in interpreting the Texas Constitutions. For example, Holt v. State, 2 Tex. 363 (1847), was one of the first cases in which the Court undertook to interpret our constitutional prohibition against ex post facto legislation.")
  • Texas Water Rights Comm'n v. Wright, 464 S.W.2d 642, 648 (Tex. 1971) (citation omitted) ("The Texas Constitution, unlike the Federal Constitution, has a specific prohibition against retroactive laws. The provision in the State Constitution broadly protects rights, although they may not be rights in property. A right has been defined to be 'a well-founded claim, and a well-founded claim means nothing more nor less than a claim recognized or secured by law.' Permittees urge that Article 7519a is invalid because it nullifies their vested rights. . . . Mere retroactivity is not sufficient to invalidate a statute.")
  • Hutchings v. Slemons, 174 S.W.2d 487, 490-91 (Tex. 1943) ("It requires no discussion to show that to deny the broker the right to file suit and to offer evidence of his valid parol contract through remedial legislation . . . . It follows from what we have said that in our opinion the legislature did not intend the act in question to operate retroactively and that said act has no application to the oral contract in suit. But, if such a construction is required, the act in question is void in so far as it operates upon contracts made prior to the effective date of the act because violative of Article 1, Section 16 of the Constitution of Texas.")
  • Travelers' Insurance Co. v. Marshall, 76 S.W.2d 1007, 1024 (Tex. 1934) ("So, in view of the history of the adoption of the contract clause in the Federal Constitution, its incorporation in the organic laws of the several states, and the long judicial interpretation thereof by . . . , there is no doubt whatever but that section 16 of our Bill of Rights (article 1 of the Constitution) prohibits the enactment of moratory legislation which impairs the obligation of contracts, even though enacted during an industrial depression, such as this country had previously suffered in 1819, 1837, 1857, 1861-1865, and 1873.")
  • Mellinger v. City of Houston, 3 S.W. 249, 254-55 (Tex. 1887) ("The states to which we have referred are the only ones which have constitutional provisions in effect the same as exists in this state. The section of the constitution [prohibiting the enactment of retroactive laws] was considered in the case of De Cordova v. City of Galveston, 4 Tex. 480; and, while the facts in that case did not call for the decision of the question before us, it did call for a determination of the character of laws which the constitution forbids. It was said that '. . . .' We have no doubt that the law is thus correctly stated.")
  • Hamilton v. Flinn, 21 Tex. 713, 716-17 (1858) ("It is very clear that the rights of forced heirship, under the law of 1840, were, although inchoate, but a mere expectancy during the life of the ancestor, which did not vest nor have vitality until his death; that the status and rights of forced heirs being the creatures of law, must derive their existence and force from the law under which they vest or are brought into existence . . . . The heirs having no rights cannot complain of an approval by the legislature, expressly or by implication, of wills previously made but not fixed by the death of the maker.")
  • DeCordova v. City of Galveston, 4 Tex. 470, 479-80 (1849) ("The cases to which reference has been made, and the opinions of the courts in expounding this constitutional inhibition, will serve to illustrate the intention of the convention in imposing the restriction. Laws are deemed retrospective and within the constitutional prohibition which by retrospective operation . . . or if an attempt were made by law, either by implication or expressly, to revive causes of action already barred, such legislation would be retrospective within the intent of the prohibition, and would therefore be wholly inoperative.")

Library Resources

Online Resources