Luke Hogan, on Behalf of Himself and Other Individuals Similarly Situated v. Southern Methodist University, and Other Affiliated Entities and Individuals

Supreme Court of Texas
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No. 23-0565
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Luke Hogan, on Behalf of Himself and Other Individuals
Similarly Situated,
Appellant,

v.

Southern Methodist University, and Other Affiliated Entities and
Individuals,
Appellees

═══════════════════════════════════════
On Certified Question from the United States
Court of Appeals for the Fifth Circuit
═══════════════════════════════════════

Argued October 26, 2023

JUSTICE BLACKLOCK delivered the opinion of the Court.

In the spring of 2020, Luke Hogan was in his final semester of
graduate school at Southern Methodist University. Unfortunately, like
all of us, Hogan’s expectations for that spring were dashed by the
coronavirus and the government’s response to it. Just like thousands of
other schools across the country, SMU cancelled in-person classes and
closed its campus at the government’s insistence. Just like millions of
other students across the country—from PhD candidates to
preschoolers—Hogan and his classmates were given the unsatisfying
option of completing the semester on the internet. Unlike millions of
other students, Hogan took his school to court.
Hogan, quite understandably, felt he had been robbed of valuable
time and experience in the classroom and on the campus at SMU, time
and experience for which he paid tuition. 1 He completed his classes
online and received his degree, but he was unable to do so in the
enlivening in-person environment that both he and SMU had
anticipated would be available. In a word, he felt cheated. Millions of
other students had the very same feeling. That feeling—of having been
cheated during the spring of 2020—was a perfectly natural response to
a world turned upside down, particularly for young people who were
denied many eagerly anticipated social and educational experiences.
The feeling was shared by millions of other Americans in all walks of
life. But who or what cheated Hogan and his classmates? Was it SMU,
which complied with government lockdown orders? Was it the
government, which ordered the closures? Was it the virus itself?
Asking who or what is to blame for the closure of SMU and other
schools in the spring of 2020 gives rise to related questions of enormous
political, social, and economic significance. How can our society allocate
responsibility for the diffuse harm suffered by Hogan and millions of
young people like him who had their educations curtailed during the
lockdowns? Indeed, how can we make recompense for the many other,

1 Hogan paid roughly $25,000 in tuition and $3,180 in fees for the
spring 2020 semester. After moving classes online, SMU did not refund any of
these amounts. It did provide partial refunds for housing and meals, which
are not at issue.

2
far greater hardships endured during the lockdowns—such as the loss
of a family’s livelihood or the inability to spend time with dying loved
ones? How do we balance our responsibility to acknowledge these
injuries with the fact that the lockdowns, at the time, were perceived by
many to be a necessary response to a deadly virus?
We must acknowledge that Hogan and his classmates—along
with millions of other students—were denied valuable education and
experience because of the extraordinary circumstances of the spring of
2020. But who do we, as a society, hold responsible for that injury, if
anyone? And what personalized recourse, if any, can we afford to
individual claimants for the various harms that everyone suffered, in one
way or another, under the difficult circumstances we endured during the
most notorious year in recent memory?
These are questions of enormous consequence. Answering them
requires balancing competing values and sorting through competing
interpretations of the historic events of 2020. These questions were not,
and hardly could have been, anticipated before the spring of 2020. The
world, as we knew it, had been broken. The question the Texas
Legislature confronted a year later, in the spring of 2021—a question we
continue to confront today—was how to responsibly and constructively
pick up the pieces. The Legislature is the branch of government
uniquely suited to resolve emerging questions of vast social and
economic significance on behalf of the People of Texas, and the
Legislature provided at least a partial answer to these novel questions

3
in the spring of 2021. That answer was the Pandemic Liability
Protection Act, which the Governor signed on June 14, 2021. 2 F

Among other provisions, the PLPA protects schools from
monetary liability for altering their activities in response to the
pandemic. In this way, using the legislative process provided by our
constitution, we as a society through our elected representatives
answered some of the novel legal questions raised by the coronavirus
crisis and its aftermath. We answered, as relevant here, that schools
like SMU which cancelled classes in compliance with government orders
will not be monetarily liable to individual students like Hogan.
Hogan now contends that the Texas Legislature lacked the
authority to answer the question as it did. In his view, article I,
section 16 of the Texas Constitution prohibits the Legislature from
retroactively withdrawing his right to hold SMU liable for breaking its
promise of in-person education. Article I, section 16 prohibits
“retroactive law[s],” and Hogan contends that the PLPA’s withdrawal of
his pre-existing right to pursue contract remedies against SMU runs
afoul of this prohibition. A federal district court sided with SMU.
595 F. Supp. 3d 559, 572 (N.D. Tex. 2022). After Hogan appealed, the
Fifth Circuit certified the following question:
Does the application of the Pandemic Liability Protection
Act to Hogan’s breach-of-contract claim violate the

2 Act of May 24, 2021, 87th Leg., R.S., ch. 528, 2021 Tex. Gen. Laws

1058–64 (codified at TEX. CIV. PRAC. & REM. CODE §§ 148.001–.005).

4
retroactivity clause in article I, section 16 of the Texas
Constitution?
74 F.4th 371, 378 (5th Cir. 2023). 3 As explained below, the answer to
the certified question is No.
I.
The PLPA provides, in relevant part:
An 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 emergency and was caused, in whole or in part,
by the emergency.
TEX. CIV. PRAC. & REM. CODE § 148.004(b).
If the PLPA governs Hogan’s claims for monetary relief, there is
no question those claims must be dismissed. Hogan does not dispute
this. Instead, he contends that applying the PLPA to his claims would
violate the Texas Constitution’s prohibition on “retroactive law[s].” See
TEX. CONST. art. I, § 16. To decide whether he is right, we first consider
the text and history of our constitution’s retroactivity bar, and we then
consider the history of this Court’s cases interpreting it.

3 The parties have clashed on several other issues in federal court,
including whether Hogan had an enforceable contract with SMU for in-person
education. The federal courts have addressed these questions of Texas law
themselves, as is always their prerogative. See 595 F. Supp. 3d at 563–66
(rejecting Hogan’s breach-of-contract claim on the ground that SMU made no
promise of in-person education); 74 F.4th at 375 (reversing dismissal of
Hogan’s claim because SMU’s student agreement may be an enforceable
promise of in-person education (citing King v. Baylor Univ., 46 F.4th 344, 363
(5th Cir. 2022))). The Fifth Circuit seeks our input only as to the article I,
section 16 question, and we confine our answer accordingly.

5
A.
Some version of a prohibition on retroactive laws has appeared in
the Texas Constitution since our independence from Mexico. 4 Today’s
version, which has not changed since its ratification in 1876, states: “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.
Notably, the previous version of article I, section 16—found in article I,
section 14 of the 1869 Constitution—contained the very same language
but also said quite a bit more. The 1869 version provided:
No bill of attainder, ex post facto law, retroactive law, or
any law impairing the obligation of contracts, shall be
made; and no person’s property shall be taken or applied to
public use without just compensation being made, unless
by the consent of such person; nor shall any law be passed
depriving a party of any remedy for the enforcement of a
contract, which existed when the contract was made.
TEX. CONST. OF 1869, art. I, § 14 (emphasis added).
The clause of the 1869 Constitution italicized above, were it still
in effect today, would appear to resolve the question before us

4 TEX. CONST. art. I, § 16 (“No bill of attainder, ex post facto law,
retroactive law, or any law impairing the obligation of contracts, shall be
made.”); TEX. CONST. OF 1869, art. I, § 14 (“No bill of attainder, ex post facto
law, retroactive law, or any law impairing the obligation of contracts, shall be
made; . . . nor shall any law be passed depriving a party of any remedy for the
enforcement of a contract, which existed when the contract was made.”); TEX.
CONST. OF 1866, art. I, § 14 (“No bill of attainder, ex post facto law, retroactive
law, or any law impairing the obligation of contracts, shall be made . . . .”); TEX.
CONST. OF 1861, art. I, § 14 (“No bill of attainder, ex post facto law, retroactive
law, or any law impairing the obligation of contracts shall be made . . . .”); TEX.
CONST. OF 1845, art. I, § 14 (“No bill of attainder, ex post facto law, retroactive
law, or any law impairing the obligations of contracts, shall be made . . . .”);
REPUB. TEX. CONST. OF 1836, DEC. OF RIGHTS § 16 (“No retrospective or ex-post
facto law, or laws impairing the obligation of contracts, shall be made.”).

6
definitively in Hogan’s favor. Between 1869 and 1876, the Texas
Constitution contained this explicit ban on laws “depriving a party of
any remedy for the enforcement of a contract, which existed when the
contract was made.” Id. Hogan claims he has been deprived of just such
a remedy—indeed of all remedies. This language was removed,
however, at the 1875 convention, and the eminent domain clause was
moved to article I, section 17. The remainder of what is now article I,
section 16 was ratified in 1876 and remains to this day.
The 1869 Constitution thus granted in explicit terms the specific
protection Hogan argues we should find contained within the 1876
Constitution’s general prohibition on retroactive laws. Hogan asserts a
right to pursue the contractual remedies against SMU that were
available to him when the contract was made or, in the alternative,
when he filed suit. Such a right—against later legislative adjustment of
the judicial remedies available to contracting parties—is plainly stated
in the text of the 1869 Constitution. But we are not governed by the
1869 Constitution. We are governed by the 1876 Constitution, as
amended over the years, and today’s constitution omits its predecessor’s
specific protection for contractual remedies. What can we make of the
decision by the framers of the 1876 Constitution to omit this language?
What would those who ratified the 1876 Constitution have understood
this textual change to accomplish? See In re Abbott, 628 S.W.3d 288,
296 (Tex. 2021) (“[W]e strive to interpret the Texas Constitution based
on the plain meaning of the text as it was understood by those who
ratified it.”).

7
None of the briefing submitted by the parties or amici addresses
the strikingly relevant language in the 1869 Constitution or the
historical reasons for its omission from today’s constitution. In the
absence of historical guidance, we hesitate to assign definitive import to
the removal of this language from the 1876 Constitution. Yet certainly
one very natural explanation for the removal of a constitutional right
between one version of the document and the next is that the framers
and ratifiers of the later constitution decided the right should no longer
be constitutionally guaranteed.
On the other hand, it is at least conceivable that the specific
protection for contractual remedies was removed in 1876 because it was
considered superfluous given the longstanding protection against
retroactive laws. It is also possible that removing an explicit bar on the
deprivation of any remedy left in place a separate bar on the deprivation
of all remedies. Without more historical insight into what drove the
insertion of this clause in 1869 and its removal in 1876, we must be
careful not to draw firm conclusions about its effect on a proper
interpretation of the current version of article I, section 16. It surely
bears noting, however, that the precise right Hogan now asserts used to
be very plainly stated in the Texas Constitution but today is not.
B.
What remains in the Texas Constitution is an unexplained
prohibition on “retroactive law[s].” TEX. CONST. art. I, § 16. 5 Over the
F

5 Article I, section 16 also prohibits “any law impairing the obligation of

contracts.” The Fifth Circuit does not ask about this provision, nor do the
parties address it. We therefore make no comment on it.

8
years, this Court’s varied precedents on retroactivity came to resemble
a tangled wad of Christmas lights pulled from the attic after
Thanksgiving. See Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126,
138–45 (Tex. 2010) (detailing the conflicting history of Texas
jurisprudence on retroactive laws). Robinson is required reading for
anyone who wishes to understand Texas’s complex jurisprudential
history in this area. It describes over 150 years of case law in vivid
detail. Id. Although we need not repeat all of that history here,
Robinson’s exhaustive elaboration of the history is an essential resource
for any court asked to apply the Texas Constitution’s ban on retroactive
laws.
After describing the tangled jurisprudential history, Robinson
announces a three-part inquiry to aid courts applying the retroactivity
bar. Id. at 145. The parties focus much attention on that inquiry, and
we return to it below. But just as with a tangled string of Christmas
lights, often the best way to begin is by finding where the string starts.
As Robinson indicates, that starting point is DeCordova v. City of
Galveston, a case decided in 1849, shortly after Texas joined the Union.
See 4 Tex. 470, 474–80 (1849) (construing the prohibition on
“retrospective laws” in article 16 of the Declaration of Rights in the 1836
Constitution of the Republic of Texas).
Before assessing DeCordova, however, we note the apparent
simplicity of the constitutional text the case law interprets. Faced with
an unexplained constitutional prohibition on “retroactive laws,” it might
be tempting to simply open a dictionary—one from the time of
ratification, of course—and say that any law that fits within the

9
definition of “retroactive” is unconstitutional. Hogan would surely
benefit from such an approach. But again, our bottom-line task is to
identify what the constitutional provision would have meant to those
who ratified it. In re Abbott, 628 S.W.3d at 296. Plain-language analysis
and contemporary dictionary definitions are certainly very useful ways
to understand the original meaning of constitutional text. But if
jurisprudential history indicates that a legal term of art, such as
“retroactive law,” was understood at the time of ratification to contain
subtleties or complexities beyond what a dictionary of common usage
conveys, then naturally we must consider the history as well as the text
in order to understand the constitution’s original meaning.
As with any legal text, both the text and the context in which it
appears can be important indicators of meaning. Here, the words may
appear simple—“retroactive law”—but their context is a constitutional
provision incorporating a hoary legal concept with a complicated history
dating at least to classical antiquity. See Robinson, 335 S.W.3d at 136
(quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827,
855–56 (1990) (Scalia, J., concurring)). Something was deliberately
placed beyond the scope of the legislative power by those who framed
and ratified our constitution. To know what that something was, we
must—in this case, at least—do more than simply understand the plain
meaning of the words used. When history indicates that the framers
chose text that carried jurisprudential baggage beyond its plain
meaning, we must understand both the text and the baggage in order to
do our job—which is to understand the provision the way it would have
been understood at the time of ratification, as best we can.

10
Although the history of constitutional prohibitions on retroactive
legislation goes back much further than 1849, we need look no further
than DeCordova to find a clear indication that constitutional
retroactivity bars were not understood, in 1876, to prohibit just any law
that meets the dictionary definition of “retroactive.” All of this Court’s
cases over the years, well-outlined in Robinson, take that same
approach. We did say in Tenet Hospitals Ltd. v. Rivera that “[a]
retroactive law is one that extends to matters that occurred in the past.”
445 S.W.3d 698, 707 (Tex. 2014). But we then immediately explained,
as we have many times, that this deceptively simple formulation of the
retroactivity rule does not adequately capture the constitution’s
meaning. Id.
We first said as much at the beginning of the string, in
DeCordova. As Chief Justice Hemphill wrote, “literal” application of the
retroactivity bar to any law that “act[s] on things that are past” would
give the clause
a latitude of signification which would embarrass
legislation on existing or past rights and matters to such
an extent as to create inextricable difficulties, and in fact
to demonstrate that it was incapable of practical
application. A retrospective law literally means a law
which looks backwards or on things that are past; or if it be
taken to be the same as retroactive, it means to act on
things that are past. If it be understood in its literal
meaning, without regard to the intent, then all laws having
an effect on past transactions or matters, or by which the
slightest modification may be made of the remedy for the
recovery of rights accrued or the redress of wrongs done,
are prohibited equally with those which divest rights,
impair the obligation of a contract, or make an act,

11
innocent at the time it was done, subsequently punishable
as an offense.
DeCordova, 4 Tex. at 475–76. If this idea—that a constitutional
prohibition on “retroactive law[s]” cannot be given its literal effect for
practical reasons—had first appeared in judicial opinions written after
ratification of the 1876 Constitution, then we might suspect that the
case law impermissibly undermines, rather than interprets, the
constitutional text. Judges are not empowered to sidestep the text of
the constitution because they consider it “embarrass[ing]” or
“inextricabl[y] difficult[].” Id. at 475.
But that is not what was happening in DeCordova.
Chief Justice Hemphill drew on an established tradition that had
already rejected a rigidly literal application of retroactivity bars and
related constitutional clauses. The framers of Texas’s constitutions
were aware of that tradition when they chose the words they did. The
tradition included Chief Justice John Marshall, who wrote of the federal
“obligation of contracts” clause:
Taken in its broad, unlimited sense, the clause would be an
unprofitable and vexatious interference with the internal
concerns of a state, would unnecessarily and unwisely
embarrass its legislation, and render immutable those civil
institutions, which are established for purposes of internal
government, and which, to subserve those purposes, ought
to vary with varying circumstances.
Trs. of Dartmouth Coll. v. Woodward, 17 U.S. 518, 628 (1819).
When seeking to understand our founding documents, we cannot
ignore the historical traditions and legal foundations upon which they
were constructed. DeCordova was known to the framers of the 1876
Constitution. In fact, Chief Justice Hemphill himself participated in

12
framing the 1845 version of the document, which likewise contained a
prohibition on “retrospective laws.” 6 DeCordova provides definitive
evidence that the prevailing understanding in Texas’s founding era was
that constitutional prohibitions on retroactive laws did not withdraw
from the Legislature all power “to act on things that are past.” 4 Tex.
at 475. 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
using different constitutional text that compelled a different result.
They did not. 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.
C.
Of course, identifying the “intent” behind the retroactivity bar, as
DeCordova instructs, is by no means a straightforward enterprise. After
holding that the clause must be interpreted with “regard to [its] intent,”
DeCordova concludes that “[l]aws are deemed retrospective and within
the constitutional prohibition which by retrospective operation destroy

6 Thomas W. Cutrer, Hemphill, John, HANDBOOK OF TEXAS ONLINE
(last updated Jan. 1, 1995), https://www.tshaonline.org/handbook/entries/
hemphill-john; see also JOURNALS OF THE CONVENTION, ASSEMBLED AT THE
CITY OF AUSTIN ON THE FOURTH OF JULY, 1845, FOR THE PURPOSE OF FRAMING
A CONSTITUTION FOR THE STATE OF TEXAS 4 (Austin, Miner & Cruger 1845)
(listing John Hemphill as a Delegate from Washington County).

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or impair vested rights.” Id. at 479 (emphasis added). This “vested
rights” formulation drew on Justice Story’s oft-quoted statement:
[E]very statute, which takes away or impairs vested rights
acquired under existing laws, or creates a new obligation,
imposes a new duty, or attaches a new disability, in respect
to transactions or considerations already past, must be
deemed retrospective . . . .
Soc’y for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767
(C.C.D.N.H. 1814) (emphasis added). Because founding-era
jurisprudence contemplated that constitutional retroactivity bars exist
to protect “vested rights,” we can safely gather that the intent of those
who wrote and ratified the 1876 Constitution was to incorporate
something like this “vested rights” understanding of retroactivity.
As Robinson observes, however, the concept of “vested rights” can
quickly become murky. Inconsistent application of it by courts over the
years had illustrated “the problems in using ‘impairs vested rights’ as a
test for unconstitutional retroactivity.” Robinson, 335 S.W.3d at 140.
After analyzing the history of this Court’s decisions, Robinson jettisoned
the terminology of “vested rights” and instead distilled the following
three considerations: “[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.” Id. at 145.
In adopting this three-part inquiry, Robinson rejected a
bright-line rule, advanced by a concurring Justice, under which the
retroactivity bar categorically protects a plaintiff’s right “to pursue a
claim against his wrongdoer under the substantive laws as they existed
at the time his or her cause of action accrued.” Id. at 153 (Medina, J.,

14
concurring). That is precisely the right Hogan asserts, and Robinson
clearly counsels that such a right does not enjoy absolute protection.
Robinson ultimately concludes that “no bright-line test . . . is
possible.” Id. at 145. That statement is true enough, in the sense that
every statute and every circumstance may present unique
considerations courts must consider before declaring that a statute
violates article I, section 16. But Robinson and the legal history on
which it builds are not devoid of useful rules that can be applied
categorically in many cases.
The old categorical rule from DeCordova—grounded in the
ancient concept of “vested rights”—proved confounding in its
application. Robinson responded by abandoning the language of “vested
rights.” See id. (lamenting “the fundamental failure of the ‘impairs
vested rights’ test”). But Robinson by no means discarded the
underlying principle: Constitutional retroactivity bars exist to “protect[]
the people’s reasonable, settled expectations.” Id. at 139. Robinson’s
three-part inquiry incorporates this principle by requiring consideration
of “the nature of the prior right impaired by the statute.” Id. at 145.
Thus, in addition to formulating its oft-cited three-part inquiry,
Robinson also stands firmly for the distinct proposition that “protecting
settled expectations” is a “fundamental objective” of the constitution’s
retroactivity bar. Id. at 139. Robinson’s emphasis on “protecting settled
expectations” stems from the very same considerations that caused
earlier generations of judges to hold that retroactivity protections are
limited to “vested rights.” We previously observed that the notion of
“vested rights” derives from “[c]onsiderations of fair notice, reasonable

15
reliance, and settled expectations.” Owens Corning v. Carter, 997 S.W.2d
560, 572 (Tex. 1999) (emphasis added). The concept of “vested rights” in
the older case law is thus closely connected—though not identical—to
the concept of “settled expectations” on which Robinson places great
weight. Both linguistic formulations stem from a unified underlying
principle, embedded in the law long before the 1876 Constitution and
clearly stated by this Court as recently as 2003: “A law that does not
upset a person’s settled expectations in reasonable reliance upon the law
is not unconstitutionally retroactive.” In re A.V., 113 S.W.3d 355, 361
(Tex. 2003). Robinson affirms this rule, which we now apply to Hogan’s
claims against SMU.
D.
To establish that article I, section 16’s bar on “retroactive law[s]”
prevents application of the PLPA to his claims, Hogan must show he had
a reasonable and settled expectation that he could recover money
damages from SMU if the government forcibly shut down the campus
and gave the school only the option of completing Hogan’s degree
program on the internet. He has not done so. Any expectation that a
monetary judicial remedy would be available in those circumstances was
entirely speculative and by no means settled. The Legislature does not
exceed its authority by resolving lingering uncertainty about the
viability of a speculative, untested theory of liability on which the
common law already casts considerable doubt. And that is what we have
here.

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The common law has never faulted a contracting party whose
performance is rendered impossible by either an Act of God 7 or an act of
government. 8 The coronavirus crisis was surely both, at least in the
spring of 2020 when government orders specifically prohibited in-person
higher education. 9 If there is any settled expectation involved here, it is
the long-settled expectation of all Texans that the law will not fault
them for failing to perform a contract the government has ordered them
not to perform by threat of criminal sanction. In fact, were the
Legislature to retroactively override that rule and impose post hoc
liability on parties who reasonably relied during the pandemic on the
common-law impossibility doctrine, article I, section 16 might very well
be violated. But legislative codification of the venerable impossibility

7 See, e.g., Karakey v. Mollohan, 15 S.W.2d 692, 693 (Tex. App.—El Paso

1929, no writ) (“Karakey, by his agreement with Mollohan, charged himself
with an obligation possible to be performed, and he must make it good, unless
its performance is rendered impossible by the act of God, the law, or Mollohan
himself.”).
8 See, e.g., Hous. Ice & Brewing Co. v. Keenan, 99 Tex. 79, 79 (1905)

(“Appellant’s proposition that the performance of a contract is excused by a
supervening impossibility caused by the operation of a change in the law is
correct . . . .” (quoting and adopting the court of appeals opinion)).
9 The Governor of the State of Texas, Exec. Order GA-08 (issued
Mar. 19, 2020), 45 Tex. Reg. 2271, 2271 (2020) (Governor’s executive order
initially closing schools); The Governor of the State of Texas, Exec. Order
GA-16 (issued Apr. 17, 2020), 45 Tex. Reg. 2753, 2761 (2020) (Governor’s
executive order keeping schools closed for remainder of 2019-2020 school year).
Hogan’s claims cover only the spring of 2020, when government orders
prevented SMU from holding in-person classes. We do not address a
circumstance in which a school not required by the government to shut down
nevertheless chose to remain online because of the virus.

17
doctrine—which is essentially how the PLPA operates in Hogan’s case—
upsets no settled expectations and generates no retroactivity concerns.
Hogan objects that the impossibility doctrine might not
completely foreclose all his claims for monetary relief, although there is
no question that it guts the heart of his claim, which is that he is entitled
to a refund because the school broke its promise of in-person education.
He argues that the circumstances under which SMU’s performance
could be excused as impossible are too fact-dependent and uncertain to
conclusively undermine his well-settled expectation that he could
vindicate his contractual right to receive the on-campus experience for
which he initially paid. But the impossibility defense applies in just this
type of situation: when a party cannot both perform as agreed and, at
the same time, “obey [a] governmental regulation.” Centex Corp. v.
Dalton, 840 S.W.2d 952, 956 (Tex. 1992). As a result of unforeseeable
government regulation, both SMU and its students “entertained a basic
assumption about the contract that proved untrue.” Tractebel Energy
Mktg., Inc. v. E.I. Du Pont De Nemours & Co., 118 S.W.3d 60, 66 (Tex.
App.—Houston [14th Dist.] 2003, no pet.). The common-law
impossibility defense would thus have limited SMU’s liability
considerably—and perhaps altogether—even in the absence of the
PLPA.
Hogan questions, however, whether the fees he paid to support
SMU’s on-campus facilities should be refunded because the facilities
were unavailable. He complains about the way the online classes were
provided. And he questions whether SMU enjoyed reduced expenses
after the campus closed and should therefore have to refund some of his

18
tuition and fees. But Hogan fails to acknowledge that SMU’s “Student
Rights and Responsibilities” agreement authorizes SMU to “in its
discretion amend or change [its] terms at any time and from time to
time.” And whatever the precise contours of the contractual
arrangement between Hogan and SMU, Hogan cites no precedent in
which a student in his position has obtained monetary damages from a
school in the event of the campus’s unexpected closure for any reason—
much less its forced closure at the hand of the government. We do not
hold that such a recovery could never be available, only that we are
pointed to no basis in the law to support a settled expectation of such a
recovery. Nor are we pointed to a clear or settled method of assigning a
dollar value to the difference between the in-person experience Hogan
bargained for and the online experience he received.
Even assuming Hogan had a settled expectation that he would be
entitled to a refund of some indeterminate amount if on-campus
education became impossible, we cannot ignore that Hogan voluntarily
accepted the altered form of performance offered by SMU. SMU offered
students a shift to online classes to finish the semester, and it did so
without a corresponding offer of tuition refunds or reduced fees. Rather
than demand in-person school or his money back, Hogan did what
millions of other disappointed students did. He accepted what the school
could offer under the circumstances, and he got his degree. He had no
reasonable expectation of a refund after he elected to continue his
education and receive his degree under the amended terms SMU offered
when it became impossible to perform as originally agreed. In other
words, the deal Hogan now seeks to vindicate—under which he finishes

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school online and gets a degree but does so for a reduced payment of
tuition and fees—was never offered by SMU to Hogan or any of his
classmates. 74 F.4th at 373.
Thus, any right of recovery that might have existed for Hogan
was, at best, speculative and untested prior to the PLPA’s enactment.
Against this slightest of speculative private rights stands the right of
Texans, through their elected representatives, to enact legislation in the
public interest, which Robinson says must be considered. 335 S.W.3d
at 145. By enacting the PLPA, the Legislature resolved legal
uncertainty created by the novel circumstances of the pandemic in order
to promote the speedy recovery of our society and our economy from one
of the most traumatic episodes in our history. Whether or not we agree
with the PLPA as a policy matter, we cannot deny the overwhelming
strength and legitimacy of the public purpose it seeks to serve.
Finally, Hogan contends that even if his substantive right to
recover damages from SMU was unsettled, he had a well-settled right
to seek those damages in court, which the PLPA retroactively took away.
But as we have said before, “changes in the law that merely affect
remedies or procedure, or that otherwise have little impact on prior
rights, are usually not unconstitutionally retroactive.” Id. at 146. Any
substantive right to recovery Hogan may have had in the absence of the
PLPA is slight. Given that reality, the right he asserts is essentially the
right to have a judge hearing a summary judgment motion tell him that
the common law affords him little or no recovery, rather than to have a
judge hearing a motion to dismiss based on the PLPA tell him that the
Legislature has barred his claims. This slight difference is primarily

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one of “remedies or procedure,” not substance. Id. To the extent there
is any substantive difference in the outcomes—which appears
unlikely—it would be a minor difference with “little impact on prior
rights.” Id. In short, the procedural pathway by which Hogan’s
speculative claims yield him little or no recovery is not a matter with
which the constitutional retroactivity bar is concerned.
II.
“Elementary considerations of fairness dictate that individuals
should have an opportunity to know what the law is and to conform their
conduct accordingly[.]” Id. at 139 (quoting Landgraf v. USI Film Prod.,
511 U.S. 244, 265 (1994)). “In other words, the rules should not change
after the game has been played.” Id. In Hogan’s case, there were no
settled rules governing a student’s ability to recover damages from a
university when the government forces the school to move online during
a pandemic. That game had never been played before. The PLPA
created new rules governing novel litigation in the wake of a novel and
previously unimaginable event. Article I, section 16’s prohibition on
“retroactive law[s]” is not violated by the application of the PLPA to bar
Hogan’s breach-of-contract claim against SMU.
For these reasons, the answer to the certified question is No.

James D. Blacklock
Justice

OPINION DELIVERED: April 26, 2024

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