Supreme Court of Texas 

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No. 21-1088 

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Fire Protection Service, Incorporated, 

Appellant, 

v. 

Survitec Survival Products, Incorporated, 

Appellee 

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On Certified Question from the 

United States Court of Appeals for the Fifth Circuit 

═══════════════════════════════════════

Argued March 22, 2022

JUSTICE HUDDLE delivered the opinion of the Court. 

A life-raft supplier entered into an oral agreement with a dealer 

allowing the dealer to sell and service the life rafts. The parties operated 

under their at-will agreement for years. During that time, the 

Legislature passed a statute that requires good cause for suppliers to 

terminate certain dealer agreements and imposes liability on suppliers 

who fail to comply. The supplier here terminated the agreement without 

cause six years after the statute took effect. The dealer sued for 
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damages, claiming the termination was wrongful because the supplier 

lacked the good cause the statute required. 

The Fifth Circuit asks whether application of the statute to the 

parties’ preexisting agreement violates the Texas Constitution’s 

prohibition against retroactive laws. We conclude it does not. 

I. Background 

Survitec Survival Products, Inc., manufactures marine safety 

equipment, including life rafts. In the 1990s, Fire Protection Service, 

Inc., (FPS) orally agreed to be an authorized dealer and servicer of 

Survitec’s life rafts. The parties agreed either of them could terminate 

their agreement at any time, for any reason or for no reason. 

Several years later, the Legislature enacted the Fair Practices of 

Equipment Manufacturers, Distributors, Wholesalers, and Dealers Act. 

See TEX. BUS. & COM. CODE §§ 57.001–.402. The Act prohibits a supplier 

from terminating a dealer agreement without good cause. Id. § 57.153. 

Nearly six years after the Act took effect, Survitec notified FPS 

that it was terminating their relationship. It is undisputed that 

Survitec did not provide FPS any reason for the termination. FPS sued 

Survitec in state district court, and Survitec removed the case to federal 

court. FPS alleges that Survitec violated the Act by, among other things, 

terminating without cause. 

The case was tried to the district court without a jury. At the end 

of FPS’s case-in-chief, Survitec moved for judgment on partial findings 

under Federal Rule of Civil Procedure 52(c). Survitec argued that 

applying the Act to the parties’ preexisting at-will agreement would 

violate the prohibition on retroactive laws in Article I, Section 16 of the 
3 

Texas Constitution. The district court agreed. It granted Survitec’s 

motion and entered judgment for Survitec. 

FPS appealed and, at FPS’s request, the Fifth Circuit certified to 

us the following question: 

Does the application of the [Act] to the parties’ agreement 

violate the retroactivity clause in article I, section 16 of the 

Texas Constitution? 

Fire Prot. Serv., Inc. v. Survitec Survival Prods., Inc., 18 F.4th 802, 805 

(5th Cir. 2021). 

II. Applicable Law 

A. Business and Commerce Code Chapter 57 

The Fair Practices of Equipment Manufacturers, Distributors, 

Wholesalers, and Dealers Act regulates the business relationships 

between manufacturers or suppliers of certain types of equipment and 

the independent dealers that sell the equipment to the public. Act of 

May 25, 2011, 82d Leg., R.S., ch. 1039, § 1, 2011 Tex. Gen. Laws 2646, 

2646. The Act applies to a “dealer agreement,” which the Act defines as 

“an oral or written agreement or arrangement, of definite or indefinite 

duration, between a dealer and a supplier that provides for the rights 

and obligations of the parties with respect to the purchase or sale of 

equipment or repair parts.” TEX. BUS. & COM. CODE § 57.002(4). It 

provides that “[a] supplier may not terminate a dealer agreement 

without good cause.” Id. § 57.153.1 And it enumerates circumstances in 

1 The Act contains separate subchapters dealing with termination of 

“single-line dealer agreements” and termination of “agreements other than 

single-line dealer agreements.” Id. §§ 57.151–.155, .201–.205; see also id.

§ 57.002(16) (defining “single-line dealer agreement”). Both parties cite to the 
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which good cause for termination of a dealer agreement exists. Id.

§ 57.154(a). 

The Act provides dealers a statutory remedy for violations. It 

states: 

If a supplier violates any provision of this chapter, a dealer 

may bring an action against the supplier in a court of 

competent jurisdiction for damages sustained by the dealer 

as a consequence of the supplier’s violation, including 

damages for lost profits, together with the actual costs of 

the action, including the dealer’s attorney’s fees and 

paralegal fees and the costs of arbitrators. 

Id. § 57.401(a). The statutory remedy is not exclusive and is in addition 

to any other remedy permitted by law or that may exist under the 

parties’ agreement. Id. §§ 57.401(b), .402. 

The Legislature passed the Act on May 25, 2011, and the 

Governor signed it into law the following month, on June 17, 2011. It 

took effect two and a half months later, on September 1, 2011. Act of 

May 25, 2011, § 5. The Act applies to all dealer agreements entered into 

or renewed on or after the Act’s effective date. Id. § 4(a)(1). A dealer 

agreement existing before September 1, 2011, is governed by the law in 

effect before then, unless it “has no expiration date” and “is a continuing 

contract.” Id. § 4(a)(2), (b). 

subchapter governing agreements other than single-line dealer agreements, so 

we assume without deciding that the parties’ agreement here is not a “singleline dealer agreement.” We note, however, that both subchapters similarly 

prohibit a supplier from terminating a dealer agreement without good cause. 

Id. §§ 57.153, .202. 
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B. Texas Constitution Article I, Section 16 

The Texas Constitution commands: “No 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. The U.S. 

Constitution, unlike the Texas Constitution, does not expressly prohibit 

“retroactive” laws. But it does prohibit bills of attainder, ex post facto 

laws, and laws impairing the obligation of contracts. See U.S. CONST. 

art. I, §§ 9 (“No Bill of Attainder or ex post facto Law shall be passed.”), 

10 (“No State shall . . . pass any Bill of Attainder, ex post facto Law, or 

Law impairing the Obligation of Contracts . . . .”). 

As the U.S. Supreme Court has observed, a “presumption against 

retroactive legislation is deeply rooted in our jurisprudence.” Landgraf 

v. USI Film Prods., 511 U.S. 244, 265 (1994). It rests on the “principle 

that the legal effect of conduct should ordinarily be assessed under the 

law that existed when the conduct took place.” Id. (quoting Kaiser 

Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, 

J., concurring)). 

Distilling over 150 years of precedents involving the Texas 

Constitution’s prohibition against retroactive laws, we set forth in 

Robinson v. Crown Cork & Seal Co. a “fuller statement of its proper 

application.” 335 S.W.3d 126, 136 (Tex. 2010). We observed that the 

presumption against retroactive laws advances two fundamental 

objectives of our system of government: the protection of “reasonable, 

settled expectations” and protection against “abuses of legislative 

power.” Id. at 139 (citing Landgraf, 511 U.S. at 265–66). Put 

differently, our constitutional prohibition against retroactive laws 
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“protects settled expectations that rules are to govern the play and not 

simply the score, and prevents the abuses of legislative power that arise 

when individuals or groups are singled out for special reward or 

punishment.” Id. at 145. To determine whether a statute is 

unconstitutionally retroactive, we first consider the nature of the rights 

claimed and the statute’s impact on them. Id. at 147. If the statute 

disturbs a party’s settled expectations, we then must consider whether 

the statute serves a public interest as opposed to simply benefiting one 

or a few private entities. Id. at 149. 

Although Robinson refined our framework for analyzing whether 

laws are unconstitutionally retroactive, it did not break new ground but, 

rather, provided a unifying statement of the principles that we had 

applied in our earlier cases. One key principle is that a law is not 

retroactive in the constitutional sense unless it disrupts or impairs 

settled expectations. As we stated in In re A.V., “[a] law that does not 

upset a person’s settled expectations in reasonable reliance upon the law 

is not unconstitutionally retroactive.” 113 S.W.3d 355, 361 (Tex. 2003) 

(citing Landgraf, 511 U.S. at 269–70). In that case, we held that an 

amendment to the Family Code creating a new ground for parental 

termination based on criminal conduct and incarceration was not 

unconstitutionally retroactive as applied to a father who had been 

convicted before the amendment was enacted. Id. at 361–62. We 

concluded that the father “could not reasonably expect that the State 

would not act to provide a safe environment for his children while he 

was imprisoned.” Id. at 361. Similarly, in Texas Water Rights 

Commission v. Wright, we upheld a statute authorizing the forfeiture of 
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water permits for non-use, even though the permits were issued before 

the statute’s enactment. 464 S.W.2d 642, 649 (Tex. 1971). We held that 

permit holders “could reasonably expect that their rights would be 

subjected to a remedy enforcing the conditions inherently attached to 

those rights.” Id.

In determining whether a law disrupts or impairs settled 

expectations, we consider whether the law gives parties a “grace period” 

to adapt before the law takes effect. In City of Tyler v. Likes, we held 

that an amendment to the Tort Claims Act that made the city immune 

from a negligence claim for flooding that occurred before the 

amendment’s effective date was not unconstitutionally retroactive. 962 

S.W.2d 489, 502 (Tex. 1997). We noted that the amendment did not 

entirely eliminate the plaintiff’s right to sue because she had time to file 

her lawsuit before the amendment took effect, including “more than two 

months from the time the change was made until the [amendment] 

became effective.” Id. And in Union Carbide Corp. v. Synatzske, we 

observed that the period between the enactment and effective date of a 

statute imposing new prerequisites on asbestos-related claims “allowed 

a grace period for suits to be filed under the law as it previously existed.” 

438 S.W.3d 39, 58 (Tex. 2014). We held the statute was not 

unconstitutionally retroactive when applied to a claim that had accrued 

(but had not been filed) before the statute’s effective date. Id. at 60. 

These statutory grace periods are required by our Constitution, which 

mandates that (with limited exceptions) statutes not take effect until 

ninety days after the legislative session adjourns. TEX. CONST. art. III, 

§ 39. Not long after our Constitution’s adoption, we explained that the 
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object of that section “was to give notice to the people of its passage, that 

they might obey it when it should become effective, and also to enable 

them to adjust their affairs to the change made, if any.” Halbert v. San 

Saba Springs Land & Live-Stock Ass’n, 34 S.W. 639, 639 (Tex. 1896). 

III. Discussion 

A. Does the Act apply in this case? 

The district court found the Act unconstitutionally retroactive as 

applied to the parties’ preexisting agreement. Notably, the Act applies 

to a dealer agreement entered into before the Act’s effective date only if 

it has no expiration date and is a continuing contract. Act of May 25, 

2011, § 4(a)(2). The parties do not dispute that theirs was such an 

agreement. Thus, for purposes of answering the certified question, we 

assume without deciding that the parties’ agreement was the type of 

“continuing contract” to which the Act applies. 

Survitec also argued in the district court the Act was inapplicable 

for a different reason: life rafts do not constitute “equipment” under the 

Act. See TEX. BUS. & COM. CODE § 57.002(7)(A) (defining “equipment” to 

include “machinery, equipment, or implements or attachments to the 

machinery, equipment, or implements used for, or in connection with, 

any of the following purposes: . . . industrial, construction, maintenance, 

mining, or utility activities or applications”); see also id. § 57.002(4) 

(defining “dealer agreement” to mean an agreement regarding the 

purchase or sale of equipment). The district court denied Survitec’s 

motion for summary judgment and initially “conclude[d] without 

reservation that the Survitec life rafts are ‘equipment’ for purposes of 

the Act’s applicability.” But the district court’s later order granting 
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Survitec’s motion for judgment and declaring the Act unconstitutionally 

retroactive states that the district court “need not address definitively 

the difficult question whether the life rafts are ‘equipment’ under the 

Act.” 

Survitec pressed this argument as an alternative ground for 

affirmance, but the certified question does not mention it, and neither 

party briefed the issue in this Court. The State, as amicus, on the other 

hand, urges us to decide whether life rafts are “equipment” covered by 

the Act, arguing that our precedents require resolution of that question 

before reaching the constitutional question the Fifth Circuit posed. We 

of course adhere to our rule that courts must avoid reaching 

constitutional questions when issues can be resolved on 

nonconstitutional grounds. See Phillips v. McNeill, 635 S.W.3d 620, 630 

(Tex. 2021) (describing this rule as “not optional”). But this case comes 

to us not through an appeal from a Texas state court, but on a certified 

question. We therefore decline the State’s invitation to address 

Survitec’s claim that life rafts are not “equipment” under the Act, and 

we express no opinion on it. See Richards v. State Farm Lloyds, 597 

S.W.3d 492, 497 n.6 (Tex. 2020) (“To avoid exceeding our jurisdiction, 

‘we answer only the questions certified and nothing more.’” (quoting 

Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 349 (Tex. 1990))). 

B. Did Survitec rely on the wrong clause of Article I, Section 

16? 

In a waiver-like argument, FPS asserts that Survitec’s 

constitutional challenge should fail because it should have been (but was 

not) brought under the clause of Article I, Section 16 prohibiting “any 

law impairing the obligation of contracts.” TEX. CONST. art. I, § 16. FPS 
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contends that Survitec’s reliance on a distinct clause in Article I, 

Section 16 prohibiting a “retroactive law” is improper. It argues these 

two clauses must not be read as interchangeable, or one would be 

rendered superfluous.2

Survitec responds that its challenge under the retroactivity 

clause is proper because the contracts clause addresses only a party’s 

right to enforce the other party’s contractual obligations. Survitec thus 

disclaims any reliance on the contracts clause. Survitec asserts its 

“right to enforce a contractual termination right” is a positive-law right 

with which the Act interferes. Alternatively, Survitec contends that 

overlap between the clauses would not render either superfluous. 

We need not decide whether Survitec brought its challenge under 

the wrong clause of Article I, Section 16 because we conclude that the 

Act’s application to the parties’ agreement does not violate the 

prohibition against retroactive laws as Survitec asserts. Survitec does 

not assert that the Act’s application violated the contracts clause, and 

the certified question does not address the issue. We therefore express 

no opinion on whether the Act’s application may have been 

unconstitutional under that clause as a law impairing the obligation of 

contracts. 

C. Does application of the Act violate the retroactivity 

clause? 

Neither party disputes that their agreement was at-will such 

that, before the Act’s effective date, either party could terminate the 

2 While FPS’s opening brief devotes significant attention to this 

argument, it was not mentioned at oral argument. 
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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. 

FPS asserts that Survitec violated the Act when it terminated 

their agreement. Yet it is undisputed that the Act did not change the 

legal consequences of termination after the termination had already 

occurred. Because “the legal effect of [Survitec’s] conduct [is being] 

assessed under the law that existed when the conduct took place,” see

Landgraf, 511 U.S. at 265, and, as discussed below, Survitec had an 

opportunity to avoid those consequences before the Act took effect, the 

application of the Act presents no problem of retroactivity in the 

constitutional sense. As applied here, the Act does not “change [the 

rules] after the game has been played.” Robinson, 335 S.W.3d at 139. 

Under Survitec’s view, the Act retroactively eliminated its right 

to continue its at-will relationship with FPS in perpetuity. But this 

misunderstands the protections afforded by the retroactivity clause. It 

protects only “settled expectations.” Id. at 145; see A.V., 113 S.W.3d at 

361 (“A law that does not upset a person’s settled expectations in 

reasonable reliance upon the law is not unconstitutionally retroactive.”). 

Survitec entered into an agreement that could be terminated at any time 

by either party. It had no reasonable settled expectation that it would 

have the right to continue to operate in a relationship with FPS under 
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those same terms, or any terms, for any length of time, let alone in 

perpetuity. 

Indeed, Survitec’s continued performance under the parties’ atwill agreement after the Act was passed demonstrates its assent to 

operate under the Act’s requirements. As we explained in Hathaway v. 

General Mills, Inc., if an employee has notice of a proposed change to an 

at-will employment contract and continues working with knowledge of 

the changes, that employee “has accepted the changes as a matter of 

law.” 711 S.W.2d 227, 229 (Tex. 1986); see also In re Halliburton Co., 80 

S.W.3d 566, 568 (Tex. 2002). So too in this context. 

Survitec also argues that the Act eliminated its contractual “right 

to terminate [the relationship] at will” without further duties or 

liabilities. But Survitec had an opportunity to avoid the consequences 

that the Act attached to termination without cause. The period between 

the Act’s enactment and effective date provided Survitec with sufficient 

notice of the Act’s requirements in that it allowed Survitec time to order 

its affairs as it chose. Survitec had a window of ninety-nine days from 

the Act’s passage and seventy-six days from the Governor’s signature, 

during which it could have taken action to avoid or defer application of 

the Act. It could have terminated the agreement during that grace 

period, which would have allowed it to avoid the Act’s application 

altogether. Or it could have entered into a new agreement with FPS for 

a fixed term that otherwise contained the same terms as the parties’ 

previous agreement, including the ability to terminate at will, and thus 

avoided the Act’s application to the agreement during the new 
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agreement’s term. See Act of May 25, 2011, § 4(b). Survitec instead 

chose to continue operating under the parties’ agreement. 

Survitec responds that the period between the Act’s passage and 

effective date was insufficient to provide Survitec with notice of the Act’s 

potential effect on its asserted right to terminate without cause. In 

support, Survitec relies primarily on Missouri, K. & T. Ry. Co. of Texas 

v. State, 100 S.W. 766 (Tex. 1907). That case involved a railroad 

company’s due-process challenge to a statute that required construction 

and maintenance of restrooms at each passenger station and imposed 

weekly fines for noncompliance. We observed that compliance would 

have been “practically impossible” because the railroad company had 

only one week after the statute’s effective date in which to build 

compliant restrooms at every station. Id. at 767. Accordingly, we held 

that, despite the ninety-day period between the statute’s enactment and 

effective date, this requirement was “so oppressive and arbitrary” that 

it violated due process. Id. In doing so, we noted that “the railroads 

were not required to take notice of [the statute] until it became 

operative.” Id. at 768. 

Survitec urges us to read Missouri to hold that enactment of a 

statute cannot constitute notice of a forthcoming change in the law. But 

that is not what Missouri held. Missouri did not involve an assertion 

that the law was retroactive. Our concern in that case was whether a 

penal statute afforded parties sufficient time to build the structures 

necessary to comply. We did not hold that a statute’s enactment cannot 

serve as notice of an upcoming change in the law. 
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Survitec cites other cases that cite Missouri, but they do not 

support Survitec’s argument. For example, in Popham v. Patterson, we 

were asked to determine when a statute that changed the term length 

of an elected position took effect. 51 S.W.2d 680, 683 (Tex. 1932). Citing 

Missouri, we noted that “[n]o act of the Legislature is operative as notice 

until it becomes a law.” Id. But the issue in that case was when the 

statute became operative. Popham is not a retroactivity case and our 

reference to “notice” had nothing to do with the question of whether a 

party receives sufficient notice that the law is about to change. 

Likewise, in Norton v. Kleberg County, our only concern was 

“determining when an Act goes into effect as law.” 231 S.W.2d 716, 718 

(Tex. 1950). In short, the cases on which Survitec relies to support its 

claim that it had no notice that the Act could alter the consequences of 

Survitec’s contract termination do not address the concerns that 

animate our constitutional prohibition against retroactive laws. 

In contrast, our retroactivity cases have considered the period of 

time between a statute’s enactment and effective date in weighing the 

degree of notice afforded and a statute’s impairment of a party’s rights. 

See Likes, 962 S.W.2d at 502 (holding an amendment to the Tort Claims 

Act was not unconstitutionally retroactive and noting the plaintiff had 

“more than two months from the time the change was made until the 

[amendment] became effective”); Union Carbide, 438 S.W.3d at 58 

(describing the period between a statute’s enactment and effective date 

as a “grace period for suits to be filed under the law as it previously 

existed”). These constitutionally required grace periods are designed “to 

give notice” so the public can adjust to the new law. Halbert, 34 S.W. at 
15 

639 (discussing TEX. CONST. art. III, § 39). Survitec’s contention that 

enactment of a statute does not provide notice of an upcoming change in 

the law flies in the face of these precedents, and we reject it. 

Under these facts, we conclude that the Act’s application did not 

retroactively disrupt or impair any reasonable settled expectation of 

Survitec. We thus conclude the application of the Act to Survitec’s 

termination of the agreement is not unconstitutionally retroactive. See

Robinson, 335 S.W.3d at 145; A.V., 113 S.W.3d at 361. 

IV. Conclusion 

Survitec had no reasonable settled expectation that it could 

continue to operate under its open-ended, at-will agreement in 

perpetuity. And Survitec had sufficient time between the Act’s 

enactment and effective date to take whatever steps it thought 

necessary to avoid the Act’s effects. Survitec could have ordered its 

affairs to avoid or defer the Act’s application to its contractual 

relationship but instead chose to continue operating under its 

agreement until the Act took effect. For these reasons, we conclude that 

application of the Act in this case does not violate the constitutional 

prohibition against retroactive laws in Article I, Section 16. We answer 

the certified question “no.” 

 

 Rebeca A. Huddle 

 Justice 

OPINION DELIVERED: June 3, 2022