IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

ALLISON KING, JOSHUA ROOP,

Plaintiffs,

v.

BAYLOR UNIVERSITY,

Defendant.

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§

§

§

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W:20-CV-00504-DC

MEMORANDUM OPINION

The world started 2020 by helplessly watching COVID-19 burn through country 

after country around the globe. And soon after, the pandemic arrived in full force on the 

United States’ shores. Uncertainty was the only thing certain as people prepared for the 

worst while hoping for the best. As a result, life was put on pause for many, including 

students when educational institutions moved to online learning. Baylor University was one 

such institution. 

Baylor moved its classes online on March 16, 2020, three days after Texas Governor 

Greg Abbott declared a state of disaster in response to COVID-19. Swept up in Baylor’s

move to remote classes were Plaintiffs Allison King and Joshua Roop. Plaintiffs’ sole claim 

against Baylor is simple: they expended thousands of dollars to attend Baylor in person, but 

when Baylor moved classes online, the rest of the Spring 2020 semester was a lesser product 

than what Plaintiffs paid for. Thus, Plaintiffs sued Baylor for breach of contract in late 2020.

Yet the questions presented here are bigger than a simple breach of contract claim. In 

June 2021, Governor Abbott signed the Pandemic Liability Protection Act (“PLPA”) into 

law. In relevant part, the PLPA shields educational institutions like Baylor from monetary 

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liability arising from an institution’s move to remote learning in response to the pandemic. 

The PLPA then, puts Plaintiffs’ claim in jeopardy.

If the Act doesn’t apply to Plaintiffs’ claim or is unconstitutional, Baylor—and every 

other educational institution that moved to remote learning—becomes monetarily liable for 

seeking to protect students and faculty during an unprecedented health emergency. On the 

other hand, if the Act does apply and is constitutional as applied, Plaintiffs will be left 

holding any empty bag almost three years later. Although that outcome might be unfair; 

unfair does not always equal unconstitutional.

BACKGROUND

When Plaintiffs enrolled in classes at Baylor for the Spring 2020 Semester, they 

signed a Financial Responsibility Agreement (“FRA”). In short, the FRA required Plaintiffs 

to pay Baylor as a condition of their enrollment for the semester, for which Plaintiffs would 

receive “educational services.” This is the basis for Plaintiffs’ claim: Plaintiffs contracted for 

“educational services, which in their opinion, means “in-person, on-campus” instruction. So 

when Baylor moved classes online, Plaintiffs claim that Baylor breached the FRA.

King sued Baylor in August 2020, alleging breach of contract and unjust enrichment.

1

After Baylor moved to dismiss King’s claims, U.S. District Judge Alan Albright adopted the

U.S. Magistrate Judge’s Report and Recommendation and dismissed Plaintiff King’s claims.

2

King appealed the decision to the Fifth Circuit. While the appeal was pending, the Texas 

Legislature passed the PLPA.3 Three months after the PLPA’s passage, the Fifth Circuit 

1 Doc. 28 at 18–27.

2 Docs. 31, 55.

3 Act of June 14, 2021, 87th Leg., R.S., ch. 528, 2021 Tex. Gen. Laws, S.B. 6, § 3 [hereinafter PLPA].

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ruled on King’s appeal, granting in part, and reversing in part the lower court’s order, 

remanding the case for further proceedings on a potential ambiguity in the term “educational 

services.” 

After the remand, four things happened. First, the case was reassigned from Judge 

Albright in the Waco Division of the Western District of Texas to this Court in the 

Midland/Odessa Division.4 Next, a Second Amended Complaint was filed, adding Roop to 

the case.5 Third, Baylor moved to dismiss Plaintiffs’ Second Amended Complaint for failure 

to state a claim.6 Lastly, Plaintiffs gave notice to Texas Attorney General Ken Paxton of its 

challenge to the PLPA’s constitutionality in late December 2022.7 Thus, the 45 days for 

Texas to file briefing in support of the law have passed, and the Parties’ motions are ripe to 

be adjudicated. 

LEGAL STANDARD

When a defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), 

the trial court must assess whether a complaint states a plausible claim for relief.8 The court 

must accept “all well-pleaded facts in the complaint as true and viewed in the light most 

favorable to the plaintiff.”9 “A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable for 

the misconduct alleged.”10 

4 Doc. 62.

5 Doc. 65.

6 Doc. 66.

7 Doc. 70.

8 See Raj v. La. State Univ., 714 F.3d 322, 329–30 (5th Cir. 2013) (citing Bass v. Stryker Corp., 669 F.3d 501, 506 

(5th Cir. 2012)). 

9 See id. 

10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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On the other hand, if the complaint only offers “labels and conclusions” or “a 

formulaic recitation of the elements of a cause of action,” dismissal is appropriate.11

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.”12 The court should dismiss a complaint if the court can only 

infer the mere possibility of misconduct, or if the plaintiff has only alleged that he is entitled 

to relief rather than stating a claim that is “plausible on its face.”13 

DISCUSSION

The Fifth Circuit remanded this case with instructions to consider “whether Baylor's 

or King's interpretation of ‘educational services’ prevails.”14 Specifically, the Fifth Circuit 

directed the district court to answer “whether Plaintiffs’ interpretation of ‘educational 

services’ is reasonable and, if so, whether the term is latently ambiguous.”15 Also however, 

tucked in a footnote, the Fifth Circuit assigned a critical issue “for the district court in first 

instance”—whether the PLPA applies and is constitutional as applied to Plaintiffs’ claim.16

In response to the “unprecedented public health emergency” caused by Covid-19, the 

Texas Legislature passed the PLPA to “establish[] certain procedures and standards for 

addressing potential claims against individuals and entities” like educational institutions.17 To 

that effect, the PLPA provides that “[a]n educational institution is not liable for damages or 

equitable monetary relief arising from a cancellation or modification of a course, program, or 

activity of the institution if the cancellation or modification arose during a pandemic 

11 Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 

12 Shaw v. Villanueva, 918 F.3d 414, 415 (5th Cir. 2019) (quoting Iqbal, 556 U.S. at 678). 

13 Iqbal, 556 U.S. at 678–79 (quoting Twombly, 550 U.S. at 570).

14 King v. Baylor Univ., 46 F.4th 344, 363 (5th Cir. 2022).

15 Id.

16 Id. at 355, n.4.

17 PLPA § 4(c). 

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emergency and was caused, in whole or in part, by the emergency.”18 But this liability shield 

applies “only to an action commenced on or after March 13, 2020, for which a judgment has 

not become final before [June 14, 2021].”19

Baylor asserts that the PLPA bars Plaintiffs’ breach of contract claim. Plaintiffs 

counter that the Act doesn’t apply, and if it does, it is unconstitutional under the Texas and 

the United States Constitutions. Because the Fifth Circuit declined “to render an uninformed 

interpretation of the PLPA and leave that for the district court in first instance,” this Court 

will first take up the PLPA’s application and constitutionality.20 Thus, the fate of Plaintiffs’ 

breach of contract claim rests on the answers to three questions:

(1) Does the PLPA apply to Plaintiffs’ claims?

(2) Is the PLPA constitutional under the Texas Constitution’s Retroactivity 

Clause?

(3) Is the PLPA constitutional under the Contracts Clause from both the Texas 

and United States Constitutions?

I. Does the Pandemic Liability Protection Act apply to Plaintiffs’ claim?

Plaintiffs concede that Baylor is an “educational institution,” and that the pandemic 

caused Baylor to modify its courses.21 And that King sued Baylor after March 2020.22

Plaintiffs, however, insist the PLPA is not applicable in this case, positing that the Waco 

district court entered a “final judgment” before June 14, 2021.

23 Because of that, Plaintiffs 

argue, the PLPA does not apply to Plaintiffs’ claim. 

18 Tex. Civ. Prac. & Rem. Code Ann. § 148.004.

19 PLPA § 5(a) (signed into law on June 14, 2021).

20 Id.

21 Doc. 65 at 2, 4. 

22 Doc. 1 (King’s original complaint was filed June 5, 2020).

23 Doc. 68 at 7–20.

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The PLPA applies only to actions “for which a judgment has not become final” 

before June 14, 2021.24 The district court dismissed King’s claim and entered a final 

judgment two months before the PLPA’s effective date.

25 According to Plaintiffs, the district 

court’s prior dismissal constitutes “a final judgment,” thus kicking their claim out from 

under the PLPA. To backstop that argument, Plaintiffs point to the law on appellate 

jurisdiction. 

Federal law limits federal appellate courts’ jurisdiction to review “final decisions of 

the district courts.”26 Put simply, Plaintiffs argue that because the Fifth Circuit can only hear 

appeals from “final judgments,” and the Fifth Circuit heard Plaintiff King’s first appeal, the 

district court’s prior dismissal is exactly what the Texas Legislature meant by a “final 

judgment.”

27

Yet it’s not that simple—what “final judgment” means in Texas law depends on the 

context. For example, the Texas Supreme Court has observed that a judgment disposing of 

all issues and parties in a case might be a “final judgment” for appellate jurisdiction.

28 But a 

“final judgment” could also mean when a trial or appellate court’s “power to alter the 

judgment ends.”29 Or it could mean “when a judgment operates to finally vest rights as 

between the parties.”30 Or it could mean “when the judgment becomes operative for the 

purposes of res judicata.”31 So just because the district court’s prior orders constituted a final 

24 PLPA § 5(a).

25 Docs. 55, 56.

26 28 U.S.C. § 1291. 

27 Doc. 68 at 8–9.

28 E.g., Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985).

29 Street v. Honorable Second Ct. of Appeals, 756 S.W.2d 299, 301 (Tex. 1988)

30 Id.

31 Id.

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judgment for federal appellate jurisdiction purposes doesn’t mean that same interpretation 

applies for the PLPA. 

This Court believes that the Texas Legislature intended “a judgment [that] has not 

become final” to mean judgments where the rights or obligations between the parties have 

not vested for three reasons. First, although Plaintiffs use “final judgment” as shorthand, 

there is a grammatical difference between “final judgment” and “a judgment [that] has not 

become final.” The Texas Legislature used the present-perfect tense—“a judgment has not 

become final”—which denotes “an act, state, or condition that occurred at an unspecified 

time before now.”32 In other words, “a judgment” was entered sometime in the past, but in

the present, that judgment is not yet final.

In contrast, simply stating a “final judgment” would mean “[a] court's last action that 

settles the rights of the parties and disposes of all issues in controversy, except for the award 

of costs (and, sometimes, attorney's fees) and enforcement of the judgment.”33 If the 

legislature wished to make the PLPA reflect that definition, it could have done so. Indeed, 

the Texas Legislature could have limited the PLPA only to actions for which there is not a final 

judgment. But it didn’t. And it’s a longstanding canon of statutory interpretation that 

grammatical structure reveals the legislature’s intent.34 So the Texas Legislature purposefully 

drafted a timeframe between “a judgment” and when that judgment is “final.” Meaning, 

although the district court previously entered “judgment” on Plaintiffs’ claim, merely 

entering that judgment does not automatically make it “final” under the PLPA.

32 Bryan A. Garner, The Chicago Guide to Grammar, Usage, and Punctuation, 97 (2016).

33 Final Judgment, Black’s Law Dictionary 1008 (Bryan A. Garner ed., 11th ed. 2019)

34 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012) (Grammar 

Canon).

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Second, the Act’s grammatical structure—allowing an entered judgment to become 

final and enforceable at a later point—also meshes with rules of procedure. For example, 

under Rule 62 of the Federal Rules of Civil Procedure, a district court’s “final judgment” is 

automatically not enforceable for at least 30 days. That makes sense; a party has 30 days to 

file its appeal under the Federal Rules of Appellate Procedure.35 So just like in the federal 

rules, an entered judgment in the PLPA’s context would be final when the judgment

becomes enforceable (vested) or the parties’ right to appeal have been exhausted. Until that 

point, the issues would remain live, unvested, and appealable. 

Lastly, it makes no logical sense to call this case “final.” Plaintiffs’ breach of contract 

claim is still in controversy in much the same form it was when King filed her first 

complaint. So much so that Plaintiffs’ Second Amended Complaint—filed November 

2022—is substantially the same as the amended complaint King filed in August 2020. In 

fact, after a side-by-side comparison, the Court found that little substance has changed, even

after two years and an appeal to the Fifth Circuit. What’s more, Roop joined this case after 

the Fifth Circuit’s remand.

36 So the Court would find it strange for Roop to jump onboard a 

case he believes is “final.”

In sum, the district court’s dismissal and entry of final judgment did not stop this case 

from being a live case or controversy. And because the Parties’ rights have not been 

exhausted, nor have their obligations vested, this case is still an action “for which a judgment 

has not become final.” The PLPA, therefore, applies to Plaintiffs’ claim.

35 Fed. R. App. P. 4.

36 Doc. 65.

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II. Is the PLPA constitutional under the Texas Constitution’s Retroactivity 

Clause?

Because the Act applies, Plaintiffs’ arguments move to whether the PLPA is 

constitutional. Plaintiffs first constitutional attack posits that the PLPA violates the Texas 

Constitution’s Retroactivity Clause. 

The Texas Constitution simply states, “No . . . retroactive law . . . shall be made.”37

As defined by the Texas Supreme Court, “a retroactive law is one that extends to matters 

that occurred in the past.”38 The Retroactivity Clause enshrines a vital protection for citizens

against legislative enactments that unfairly deprive them of legitimate expectations39 Thus, 

there is a “heavy presumption” against retroactive laws.40 And there’s no question here that 

the PLPA is applied retroactively. As a result, the Court’s begins the analysis with the PLPA

facing a heavy presumption that it is unconstitutional. 

That heavy presumption can be overcome, however, by a compelling public 

interest.

41 Yet balancing a compelling public interest against the heavy presumption against 

retroactive laws is no bright-line test. With that in mind, the Texas Supreme Court in 

Robinson v. Crown Cork & Seal Co., Inc., laid out three factors for courts to consider when 

undertaking this balancing test: 

(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 

37 TEX. CONST. art. I, § 16.

38 Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 707 (Tex. 2014).

39 Owens Corning v. Carter, 997 S.W.2d 560, 572 (Tex.1999) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 265 

(1994)).

40 Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 146 (Tex. 2010).

41 See Tex. Water Rights Comm’n v. Wright, 464 S.W.2d 642, 648 (Tex. 1971).

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(3) the extent of the impairment.42

This three-factor test “also appropriately encompasses the notion that ‘statutes are 

not to be set aside lightly.’”43 Indeed, there’s a counter presumption 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.”44 And even 

though the PLPA starts out facing the heavy presumption against retroactive laws, the 

presumption that the Legislature intended for the law to be constitutional appears resilient. 

The Texas Supreme Court has “only upheld constitutional retroactivity challenges four 

times.”45

A. The nature and strength of Plaintiffs’ prior right.

Following the Robinson Court’s analysis, this Court looks first at the nature of the right 

claimed by Plaintiffs—whether Plaintiffs had “settled expectations.”46 Plaintiffs claim they 

have a “well-settled common-law right to enforce contracts they negotiated and agreed upon 

and recover thousands of dollars expended in reliance on those contracts.”47 Put simply, 

Plaintiffs allege a right to pursue a common-law breach of contract claim. 

The Robinson Court laid out three more factors to determine whether a plaintiff has 

“settled expectations”: (1) the common-law claim had matured, (2) recovery was predictable, 

and (3) whether discovery had shown their claims to have a substantial basis in fact. On the 

first factor, it’s not disputed that Plaintiffs’ claims had matured; Plaintiffs sued Baylor for 

42 335 S.W.3d at 146.

43 Tenet Hosps. Ltd., 445 S.W.3d at 707 (quoting Robinson, 335 S.W.3d at 146).

44 Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers’ Comp. Comm’n, 74 S.W.3d 377, 381 (Tex. 2002).

45 Tenant Hosps. LTD., 445 S.W.3d at 139.

46 See Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 58 (Tex. 2014).

47 Doc. 68 at 15.

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breach of contract before the PLPA’s effective date.48 And on the third factor, the simple 

factual basis for Plaintiffs’ claim doesn’t leave much room for dispute. Baylor modified 

various activities because of the COVID-19 pandemic and Plaintiffs allege those 

modifications were in breach of contract. Thus, the major contention is whether Plaintiffs’ 

recovery was “predictable.”

Predictability of Plaintiffs’ potential recovery.

Baylor points to Hogan v. Southern Methodist University from the Northern District of 

Texas to support its claim that Plaintiffs’ recovery was not predictable.49 There, a university 

student sued Southern Methodist University for much the same reasons Plaintiffs have sued 

Baylor.50 Yet U.S. District Judge Brantley Starr shot down the student’s breach of contract 

claim, reasoning that “Hogan's suit for a pro rata refund does not tie to clear precedent or an 

express contractual provision that would make it a slam-dunk contract case.”

51

This case, however, is distinguishable from Hogan. Hogan’s claims were 

“unpredictable at best” because of the lack of discovery and his “inability to adjudicate these 

claims before the new law took effect.”52 In contrast, Plaintiffs in the case before this Court 

were adjudicating their claims at the district court and on appeal before the PLPA went into 

effect. So unlike in Hogan, Plaintiffs had an ability to adjudicate their live case and 

controversy before the PLPA’s effective date. 

Also distinguishable from Hogan, the Court would not use the phrase “a slam-dunk 

contract case” in this case under the predictable recovery prong. This Court sees nothing in 

48 Doc. 1 (King’s original complaint was filed June 5, 2020).

49 595 F. Supp. 3d 559 (N.D. Tex. 2022).

50 Id. at 562.

51 Id. at 571.

52 Id.

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Robinson or its progeny that equates “predictable recovery” with a sure thing or a “slam 

dunk.” In fact, it’s likely a much lower bar. Indeed, the Robinson Court reasoned that an 

“unliquidated claim may have little or no value . . . when the cause of action has not been 

recognized or the elements of recovery cannot be proved.”53 So following that reasoning, it appears 

claims that can be proved—a possibility in other words—would have greater value. 

This Court thinks viewing “recovery was predictable” as protecting only “slam dunk 

claims” doesn’t make sense. The analysis should instead focus on whether “the elements of 

recovery [can] be proved for three reasons. First, the Texas Constitution’s Retroactivity 

Clause protects “the people's reasonable, settled expectations” against “the abuses of 

legislative power.”54 That’s why there is a presumption against retroactivity.55 It would be 

strange then, for a court to afford constitutional protections only to claims with near-certain 

recovery prospects. Indeed, a “well-founded claim”—one “recognized or secured by law”—

is a right.56 And “the Retroactivity Clause ‘must be held to protect every right . . . which may 

accrue under existing laws prior to the passage of any act which, if permitted a retroactive 

effect, would take away the right.’”57 So limiting the Retroactivity Clause’s protections to 

cases with near-certain recovery misses the point—especially at the motion to dismiss stage.

Second, in many cases, recovery is neither predictable nor unpredictable—it’s merely 

possible. But in a few cases, recovery might be predictable because it’s impossible. To 

illustrate, take the timing from Hogan. Hogan had an “inability to adjudicate these claims 

53 Robinson, 335 S.W.3d at 148 (emphasis added).

54 Id. at 139 (citing Landgraf v. USI Film Prods., 511 U.S. 244, 265–66 (1994) (cleaned up).

55 Id. at 146.

56 Mellinger v. City of Houston, 3 S.W. 249, 253 (1887).

57Robinson, 335 S.W.3d at 151–52 (Medina, J., concurring) (quoting Mellinger, 3 S.W. at 253).

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before the new law took effect.”58 Thus, when Hogan sued, he could not prove one of the 

elements (monetary damages) to a breach of contract claim. In short, his recovery of 

monetary damages was not predictable because it wasn’t possible.

In contrast, recovering monetary damages was still possible when Plaintiffs sued 

Baylor. To be sure, the Waco district court granted Baylor’s Motion to Dismiss. But 

Plaintiffs also invested time and money into an appeal before the effective date. So while the 

case was pending before the Fifth Circuit, Plaintiffs recovery was neither predictable nor 

unpredictable—it was possible. Or how Judge Duncan’s concurring opinion in the Fifth 

Circuit’s remand described Plaintiffs’ case: “plausible.”

59

Lastly, recovery in litigation is everything but predictable. Take this case: Baylor 

argues it is right, Plaintiffs argue they are. And round and round it goes. A quote from thenJustice Willett’s concurrence in Robinson captures the sentiment perfectly:

Litigants in our adversarial system are hard-wired for certitude, adept at 

insisting the law “clearly” or “plainly” favors their side or, as here, 

labeling the controlling analysis “straightforward and simple.” If only.60

“If only” is right. The Court fears predicting recovery under a “slam dunk” 

standard—especially in cases like this one—would turn the Court into an umpire calling balls 

and strikes before the pitch is even thrown. Or even worse, an umpire deciding a game by 

enforcing a pitch clock.61

58 Id.

59 See King v. Baylor Univ., 46 F.4th 344, 374 (5th Cir. 2022). (Duncan, J. concurring) (“So, to the extent these 

sources can elucidate the meaning of the FRA, they may show the parties plausibly bargained for ‘educational 

services’ that are on-campus.”).

60 Robinson, 335 S.W.3d at 159 (Willett, J., concurring).

61 Dylan Svoboda, New MLB pitch clock rule causes controversial end to Red Sox-Braves game, N.Y. POST, Feb. 25, 

2023, https://nypost.com/2023/02/25/mlb-pitch-clock-rule-causes-controversial-end-to-red-sox-braves/. 

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In sum, the Court will err on the side of protecting Plaintiffs against “the abuses of 

legislative power” by finding Plaintiffs’ recovery was predictable because all the elements of 

Plaintiffs’ recovery “plausibly” could be proved before the Act’s effective date. Thus, 

because Plaintiffs had a well-founded claim, the Court holds that Plaintiffs had “settled 

expectations” in pursuing their common-law breach of contract claim. 

B. How much does the PLPA impair Plaintiffs’ settled expectations?

Yet just because Plaintiffs have “settled expectations” does not mean the PLPA is 

unconstitutionally retroactive. The issue thus becomes how much does the retroactive law 

impair those “settled expectations.” And that is where Plaintiffs’ problems begin; there is a 

longstanding distinction between a right and a remedy in Texas law, and “changes in the law 

that merely affect remedies . . . are usually not unconstitutionally retroactive.”62 Indeed, the 

Texas Supreme Court has consistently upheld laws since the mid-1800s using this “remedial 

exception”—laws affecting an accrued cause of action’s remedy are not unconstitutionally 

retroactive unless the remedy is entirely taken away.63

Plaintiffs try to slip the kimura lock of that longstanding jurisprudence by claiming 

the PLPA is not merely remedial. For instance, Plaintiffs claim that the PLPA’s shield 

completely impairs their settled expectations because “the provision extinguishes any claim 

for monetary relief . . .”64 Well, sure. But a law extinguishing any monetary remedies does not 

62 Robinson, 335 S.W.3d at 146.

63 See, e.g., De Cordova v. City of Galveston, 4 Tex. 470, 479–80 (1849) (“Laws are deemed retrospective and 

within the constitutional prohibition which by retrospective operation destroy or impair vested rights or 

rights to ‘do certain actions or possess certain things, according to the laws of the land,’ but laws which affect 

the remedy merely are not within the scope of the inhibition unless the remedy be taken away altogether.”).

64 Doc. 68 at 15 (emphasis in original).

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extinguish all remedies. So in effect, Plaintiffs argue that a monetary remedy is the only remedy 

for breach of contract. 

But that’s not true. A remedial right to monetary relief is just one of various “means 

of enforcing an existing substantive right.”65 For example, as Baylor points out in its briefing, 

the PLPA still leaves “available the possibility of injunctive, declaratory, or other 

nonmonetary relief.”66 Thus, the PLPA would fall under the “remedial exception” because it 

does not take away all of Plaintiffs’ potential remedies. And “cutting off a right to certain 

remedies is not the same as barring a suit altogether.”67

Plaintiffs counter that without monetary relief, they are left with “hollow remedies [] 

insufficient to preserve ‘the primary rights of individuals.’”68 The Court is sympathetic 

toward that point. It's not lost on the Court that Plaintiffs likely have no use for injunctive or 

declaratory relief at this point—Spring 2020 feels like forever ago. “But unfair does not 

always equal unconstitutional; even vested rights can be impinged if lawmakers have a goodenough reason.”69 For example, the Texas Supreme Court held in City of Tyler v. Likes that 

the retroactive statute was not unconstitutional because it “affected only a remedy, not a 

right, even though a claimant would recover less or perhaps not at all.”70

In sum, Plaintiffs did have settled expectations when the PLPA became effective. 

And the PLPA does impair Plaintiffs’ pursuit of monetary relief. But therein lies the rub. 

65 Remedial, Black’s Law Dictionary 1547 (Bryan A. Garner ed., 11th ed. 2019)

66 Doc. 66 at 11.

67 Hogan v. S. Methodist Univ., 595 F. Supp. 3d 559, 572 (N.D. Tex. 2022).

68 Doc. 68 at 16 (quoting Blonstein v. Blonstein, 831 S.W.2d 468, 473 (Tex. App.—Houston [14th Dist.] ) writ 

denied, 848 S.W.2d 82 (Tex.1992).

69 Robinson, 335 S.W.3d at 160 (Willett, J., concurring)

70 Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 141 (Tex. 2010) (citing City of Tyler v. Likes, 962 S.W.2d 

489, 502 (Tex. 1997) (emphasis added).

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Texas courts have held for more than 150 years that laws affecting an accrued cause of 

action’s remedy are not unconstitutionally retroactive unless the remedy is entirely taken 

away.71 And this Court will not contradict such longstanding jurisprudence.

III. The nature and strength of the public interest served by the PLPA.

The Court must now balance the PLPA’s remedial impairment of Plaintiffs’ settled 

expectations against the nature and strength of the public interest it serves as evidenced by 

the legislature’s factual findings.

In passing the PLPA, the Texas Legislature reasoned that the Act served “a 

compelling public interest in establishing certain procedures and standards for addressing 

potential claims against individuals and entities faced with an unprecedented public health 

emergency that has had severe and adverse impacts on both the health and safety of 

individuals and the ordinary functioning of . . . educational and religious institutions . . . and 

others whose daily lives have been upended by the emergency.”72

What’s more, the PLPA’s House Report highlighted COVID-19’s “onslaught” on 

Texas, noting how the virus “has strained the state's . . . educational institutions, and there 

are widespread concerns regarding the long-term effects of the pandemic on these sectors, 

including the effects of lawsuits that have already been filed in Texas and across the 

nation.”73 So the Texas Legislature’s goal was quite clear; it expressly wanted to protect 

educational institutions from lawsuits stemming from such institutions’ responses to 

COVID-19’s impacts. 

71 De Cordova v. City of Galveston, 4 Tex. 470, 479–80 (1849).

72 PLPA § 4(c).

73 H.R. 87-26985, 87th Reg. Sess., at 1 (Tex. 2021).

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Plaintiffs, however, characterize the legislature’s findings as “thin,” arguing that 

missing details should render any factual findings inadequate.74 For instance, Plaintiffs 

innocently ask who could have raised such “widespread concerns” about potential lawsuits: 

was it “University administrators? Special interest groups? Lobbyists?”75 Plaintiffs also 

question how serious such “concerns” were. The threat of lawsuits couldn’t have been that 

serious, Plaintiffs muse, alluding that lawsuits like this one have not affected educational 

institutions’ finances or ability to function in a substantial way. Or more to the point, 

Plaintiffs believe that “the apparent, and perhaps only possible, interest served by the 

provision is protecting universities from their duty to perform under their contracts with 

students . . .”76 But even with such venal undertones, Plaintiffs’ questions overlook a simple 

fact.

The PLPA applies to Texas’s entire education system. Indeed, the PLPA not only 

shields universities like Baylor from damages, but also any “public or private preschool, 

child-care facility, primary or secondary school . . .”77 The PLPA’s language then, extends far 

beyond universities and higher education, also providing a shield for thousands, if not tens 

of thousands, of Texas schools and educational facilities.

Yet Plaintiffs assert that even though the PLPA’s protections extend throughout 

Texas’s educational system, the Act resembles the retroactive law held unconstitutional in 

Robinson. But by casting such a broad halo over many Texas educational facilities, the PLPA 

is a far cry from the retroactive law in Robinson. The law in Robinson benefitted only one 

74 Doc. 68 at 10. 

75 Id. at 11. 

76 Id. at 14 (emphasis added).

77 Tex. Civ. Prac. & Rem. Code Ann. § 148.004.

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company by reducing its asbestos litigation.78 And the legislature provided zero factual 

findings to support that law.79 Those deficiencies are not present in this case: the Texas 

Legislature found the COVID-19 pandemic threatened educational institutions and passed 

the PLPA to protect all Texas educational institutions and facilities, not just Baylor.

Plaintiffs also dispute that the legislature’s interest in protecting Texas educational 

institutions from the pandemic’s long-term effects is not “a compelling public interest 

sufficient to overcome” the “heavy presumption against retroactive laws.”80 This Court 

disagrees for four reasons.

First, Texas courts have recognized that Texas has an “unarguably compelling public 

purpose . . . in ensuring that its citizens are educated.”81 The Texas Constitution also 

enshrines Texas’s interest in education.82 As noted above, the PLPA encompasses Texas’s 

entire education system.83 So when faced with an unprecedented crisis, the Texas Legislature 

was rightfully concerned that the pandemic’s long-term effects—which included the threat 

of lawsuits—would grind the educational system to a halt. Thus, the PLPA furthers Texas’s 

compelling interest in ensuring that its citizens are educated by shielding the education 

system from destabilizing byproducts. 

Second, Texas has a compelling interest in promoting public health and safety. The 

United States Constitution “entrusts ‘[t]he safety and the health of the people’ to the 

78 335 S.W.3d 126, 149–50 (Tex. 2010).

79 Id.

80 Doc. 68 at 10.

81 Tex. Educ. Agency v. Am. YouthWorks, Inc., 496 S.W.3d 244, 264 (Tex. App.—Austin 2016) (Rose, C.J.), aff'd 

sub nom. Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54 (Tex. 2018)

82 See, e.g., TEX. CONST. art. 7. Sec. 1

83 Tex. Civ. Prac. & Rem. Code Ann. § 148.004.

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politically accountable officials of the States.’”84 Likewise, a state has broad latitude when 

acting “in areas fraught with medical and scientific uncertainties.”85 Its undeniable that 

COVID-19 presented many uncertainties in Spring 2020. And this Court will not “second 

guess” a public health decision made by a super-majority of elected officials “faced with an 

unprecedented public health emergency that has had severe and adverse impacts on both the 

health and safety of individuals and the ordinary functioning of . . . educational and religious 

institutions . . . and others whose daily lives have been upended by the emergency.”86

Third, the Texas Supreme Court has upheld retroactive laws that address a crisis

impacting wide swaths of the population. For example, the Texas Supreme Court in Tenet 

Hospitals Ltd. v. Rivera upheld a retroactive law similar to the PLPA because it addressed a 

crisis with a widespread effect. In Tenet, the Texas Legislature had enacted a statute of repose 

for healthcare liability claims while overhauling Texas’s medical malpractice law.87 In 

upholding the statute of repose’s retroactive application, the Tenet Court noted that “[u]nlike 

the statute in Robinson, there is no indication the statute here was to benefit only a particular 

entity; rather, it was aimed at broadening access to health care by lowering malpractice 

insurance premiums.”88 Indeed, “the Legislature expressly found that a spike in healthcare 

liability claims was causing a malpractice insurance crisis that adversely affected the provision 

of healthcare services in Texas.”89 In other words, the retroactive law made health care more 

84 S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (quoting 

Jacobson v. Massachusetts, 197 U.S. 11, 38, (1905)).

85 Id. (Roberts, C.J., concurring) (quoting Marshall v. United States, 414 U.S. 417, 427 (1974).

86 PLPA § 4(c).

87 Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 707 (Tex. 2014).

88 Id.

89 Id. 

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accessible, affordable, and available to the citizens of Texas.90 Thus, the Tenet Court found 

there was a compelling public interest.91

The PLPA operates like the retroactive law in Tenet. The PLPA does not single out 

one institution or even a class of institutions, like universities. Rather, the Act protects all 

institutions and facilities responsible for educating millions of Texans.

Plaintiffs push back on that view, however, asserting that unlike the law in Tenet, the 

PLPA lacks a “tight fit between the crises identified and the means employed to address 

those crises.”92 The Court disagrees: the PLPA is still narrowly tailored even with such a 

diverse group of beneficiaries. For example, the Act bars two types of recovery (“damages or 

equitable monetary relief”), for claims stemming from two specific actions (“a cancellation 

or modification of a course, program, or activity”) that occurred during a limited period 

(“arose during a pandemic emergency”) that were caused by a single emergency (“caused, in 

whole or in part, by the [pandemic] emergency”). What’s more, the PLPA applies “only to an 

action commenced on or after March 13, 2020”—the same date that Governor Abbott 

declared a state of disaster.93

Lastly, it’s no small point that Texas law mandated that schools close and remain 

closed for the rest of Spring 2020.94 Laws are enforced mainly through threats, monetary 

90 Id.

91 Id. at 707–08.

92 Doc. 68 at 14.

93 See Proc. No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020); Tex. Proc. of Mar. 13, 2020, 

https://gov.texas.gov/uploads/files/press/DISASTER_covid19_disaster_proclamation_IMAGE_03-13-

2020.pdf.

94 See Tex. Exec. Order No. GA-08 (Mar. 19, 2020), EO-GA_08_COVID19_preparedness_and_mitigation_FINAL_03-19-2020_1.pdf (texas.gov) (“In accordance with the Guidelines 

from the President and the CDC, schools shall temporarily close.”); Tex. Exec. Order No. GA-16, at 4 (April 

17, 2020), EO-GA-16_Opening_Texas_COVID-19_FINAL_04-17-2020.pdf (“In accordance with the 

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fines, or physical compulsion. So by mandating schools close or remain closed, Texas placed 

educational institutions in a “pick your poison” scenario. On one hand, educational

institutions would incur the wrath of state and local governments if they stayed open with inperson learning. But on the other was the looming threat of lawsuits (like this one) if 

educational facilities closed or modified their activities. Texas then, logically would have an 

interest in shielding educational situations from the liability created by those institutions 

obeying Texas law.95 That’s not merely this Court’s conjecture; the State of Texas’s brief in 

Hogan says exactly that: 

“[the PLPA] permits educational institutions at all levels to continue 

minimizing student exposure by making modifications to in-person 

learning in response to pandemic conditions and site-specific pandemic 

exposure without fear of being saddled with large money judgments 

from lawsuits directly targeting the safety measures implemented by the 

schools.”96

In sum, the PLPA serves a compelling interest in protecting educational institutions 

from the long-term effects of an unprecedented global pandemic. And that compelling 

interest becomes even more apparent when balanced against the Act’s slight, remedial 

impairment of Plaintiffs’ settled expectations. Thus, because of the compelling nature of the 

public interest served by the PLPA, and because the Act’s remedial impairment did not 

greatly upset Plaintiffs’ settled expectations, the Court holds the PLPA constitutional under 

the Texas Constitution’s Retroactivity Clause as applied to Plaintiffs. 

Guidelines from the President and the CDC, schools shall remain temporarily closed to in-person classroom 

attendance by students and shall not recommence before the end of the 2019-2020 school year.”).

95 Tex. Gov’t Code § 418.012 (Governor Abbott’s executive orders issued under the Texas Disaster Act have 

the force and effect of law). 

96 Brief for the State of Texas as Amicus Curiae on the Constitutionality of the Pandemic Liability Protection 

Act’s Educational Institution Provision, Hogan v. S. Methodist Univ., 595 F. Supp. 3d 559 (N.D. Tex. 2022) 

(No. 3:20-CV-02899). 

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IV. Is the PLPA constitutional under the Contracts Clause of the Texas and 

United States Constitutions?

Plaintiffs also argue the PLPA violates the Contracts Clause in both the Texas 

Constitution and the United States Constitution. Although both clauses have similar text, the 

Court will analyze them separately.

A. Texas Constitution’s Contracts Clause.

The Texas Constitution provides that “No . . .law impairing the obligation of 

contracts, shall be made.”97 Plaintiffs present two arguments. First, Plaintiffs assert that “the 

Legislature has no authority to impair existing contracts except when the state’s exercise of 

police power incidentally impairs contracts.”98 Second, even if an exercise of Texas’s police 

power, the PLPA “is still invalid because it directly impairs Plaintiffs’ and the putative class’s 

contractual rights.”99 Those arguments, however, omit a key phrase.

The Texas Contracts Clause does not prohibit laws that impair contract rights or 

contracts in general. Rather, it prohibits laws impairing the “obligations of contracts.” So that 

raises two important questions: what are “obligations of contracts,” and can a remedy be 

one? Almost a century ago in Langever v. Miller, the Texas Supreme Court stated that an 

“obligation of the contract consists in the power and efficacy of the law, which applies to, 

and enforces performance of, the contracts, or the payment of an equivalent for nonperformance.”100 Put simply, “the obligation of a contract is the law which binds the parties 

to perform their agreement.”101

97 TEX. CONST. art. I, § 16.

98 Doc. 68 at 19.

99 Id.

100 76 S.W.2d 1025, 1030 (1934).

101 Id. (citing Sturges v. Crowninshield, 17 U.S. 122, 132 (1819)).

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And “nothing is more material to the obligation of a contract than the means of its 

enforcement.” A remedy then, can become an obligation when it functions as a contract’s 

enforcement mechanism. But a remedy’s mere existence in some form doesn’t make it an 

enforcement mechanism, therefore an “obligation.” So when does it become one? Simple—

when the remedy has been made part of the contract. 

For instance, the Texas Supreme Court reasoned less than 20 years after the Contract 

Clause was enshrined in the Texas Constitution that strictly remedial statutes 

unconstitutionally impair the obligations of a contract “where the parties make legal 

remedies a subject to their contract.”102 Indeed, if the legislature could take away specific 

remedies contracted for, it “would concede to the legislature a power to make a new 

contract, and destroy the old altogether.”103 But that’s not the case here.

The FRA does not provide for monetary relief if Baylor breaches. So because 

Plaintiffs did not contract for it, monetary relief is not a “obligation” in the FRA. Texas 

courts have long upheld remedial laws in “cases in which the parties have not contracted 

about the subject-matter to which the laws were applicable.”104 And in that same vein, the 

Texas Supreme Court has stated that it does “not gainsay the proposition that the Legislature 

may change judicial methods and remedies for the enforcement of contracts. That is a rule 

of universal acceptation.”105 Thus, because the PLPA’s remedial limitations do not impair 

any obligations enumerated in the FRA, the Act is constitutional under the Texas 

Constitution’s Contract Clause as applied to Plaintiffs’ claim.

102 Int'l Bldg. & Loan Ass'n v. Hardy, 26 S.W. 497, 500 (1894).

103 Id.

104 Id.

105 Langever, 76 S.W.2d at 1028.

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B. United States Constitution’s Contracts Clause.

The Contract Clause of the United States Constitution provides that “No State 

shall . . . pass any . . . Law impairing the Obligation of Contracts.”106 But like under the 

Texas Constitution’s Contracts Clause, “not all laws affecting pre-existing contracts violate 

the Clause.”107 Indeed, the U.S. Supreme Court “has long applied a two-step test” to 

determine whether a state law crosses the constitutional line. First, a court must determine 

whether the state law “has operated as a substantial impairment of a contractual 

relationship.” To answer that “threshold” question, the Court should consider “the extent to 

which the law undermines the contractual bargain, interferes with a party's reasonable 

expectations, and prevents the party from safeguarding or reinstating his rights.”108 Like a 

call and response, the severity of impairment sets the threshold’s height.

109 Indeed, severe

impairments require a closer look, but a “[m]inimal alteration of contractual obligations may 

end the inquiry at its first stage.”110

Unfortunately for Plaintiffs, the PLPA does not even “minimally alter” the Parties’ 

contractual obligations. As the Court reasons above, the FRA is silent on Plaintiffs’ 

monetary relief, thus creating no such “contractual obligation.” And if monetary relief is not

a part of the Parties’ contractual relationship, the PLPA does not “substantially impair” that

contractual relationship.111.

106 U.S. CONST. art. I, § 10, cl. 1. 

107 Sveen v. Melin, 138 S. Ct. 1815, 1821 (2018).

108 Id.

109 Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978).

110 Id.

111 Id.

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Although the Court’s inquiry could end here, this Court also reasons that even if the 

PLPA somehow impaired the contractual relationship, Plaintiffs cannot overcome the next 

step. Under the test’s second step, if a substantial impairment exists, the court should move 

to “whether the state law is drawn in an ‘appropriate’ and ‘reasonable’ way to advance ‘a 

significant and legitimate public purpose.’”112 The Court has already laid out the PLPA’s 

many compelling interests above. So in short, the PLPA does not violate the Contracts 

Clause of the United States Constitution. 

V. Plaintiffs’ breach of contract claim is barred by the PLPA.

Because the PLPA applies and is constitutional as applied, the fate of Plaintiffs’ 

breach of contract claim is apparent. To succeed on a breach of contract claim under Texas 

law, Plaintiffs must prove there was a (1) valid contract (2) where Plaintiffs performed, (3) 

but Baylor breached, (4) and that Baylor’s breach damaged Plaintiffs.113 But the PLPA bars 

the monetary damages Plaintiffs seek, thus Plaintiffs’ Complaint does not state a plausible 

claim for relief. Accordingly, Plaintiffs’ breach of contract claim must be dismissed.

CONCLUSION

The early stages of the COVID-19 pandemic created a fog of war, forcing institutions 

to quickly make life-altering decisions in unpredictable situations. In a flash, Baylor was 

forced to juggle health, safety, students’ education, liability, and legal compliance—all while 

blindfolded. Texas recognized this plight, passing the PLPA to protect Texas’s entire

education system from monetary liability for actions those institutions took to protect their 

students and faculty while following Texas law. 

112 Sveen, 138 S. Ct. at 1822. 

113 Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 767 (5th Cir. 2016) (applying Texas law).

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Now one could argue, like Plaintiffs do, that shielding universities from monetary 

liability from suits already in progress isn’t fair. The Court doesn’t disagree. But the tests for 

whether the PLPA is constitutional in this case go deeper than “fairness.” Indeed, as the 

Court reasons above, the PLPA protects compelling public interests through a narrowly 

tailored shield against only monetary remedies. And that is enough to bar Plaintiffs’ claim.

It is therefore ORDERED that Defendant’s Motion to Dismiss Plaintiffs’ Second 

Amended Complaint be GRANTED. (Doc. 66).

It is so ORDERED.

SIGNED this 11th day of March, 2023.

DAVID COUNTS

UNITED STATES DISTRICT JUDGE

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