¶1concurring.
¶2Through judicial construction in Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798), the Supreme Court of the United States held the constitutional prohibition against an ex post facto law embraced only criminal or penal laws. That interpretation was later accepted by Texas courts. See Bender v. Crawford, 33 Tex. 745 (1871).
¶3While I join the opinion of the Court holding that as applied to applicant the 1987 amendment is an ex post facto law and, therefore, violative of both the federal and state Constitutions, I write to point out that our own constitutional prohibition against such laws is broader than the restrictive construction given “ex post facto law.” Under Article I, § 16 there is also a ban on any “retroactive law.” Ex parte Alegria, 464 S.W.2d 868 (Tex.Cr.App.1971), quoting at length statements to that effect from the Interpretive Commentary following § 16. Id., at 872.
¶4Including “retroactive law” in § 16 “evidences an intention to place a further restriction on the power of the legislature; and it must be held to protect every right, although not strictly a right to property, which may accrue under existing laws prior to the passage of any, which, if permitted a retroactive' effect, would take away that right. A right has been well defined to be a well-founded claim, and a well-founded claim means nothing more nor less than a claim recognized and secured by law.” Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, at 253 (1887). See also Turbeville v. Gowdy, 272 S.W. 559, 561[4] (Tex. Civ.App.—Fort Worth 1925).
¶5On that constitutional basis also, applicant is entitled to the relief granted by the Court.