Under the record in this case, Article 6812h is not applicable to the fact situation in this case, and its application to such fact situation would be retroactive in nature and unconstitutional. TEX. CONST. art. I, § 16; Texas N.O. R.R. Co. v. Wells Fargo Express Co. 101 Tex. 564, 110 S.W. 38 (1908); International Security Life Insurance Co. v. Maas, 458 S.W.2d 484 (Tex.Civ.App. — Houston [1st Dist.] 1970, writ ref'd n.r.e.); Lee v. Universal Life Insurance Co., 420 S.W.2d 222 (Tex.Civ.App. — Houston [14th Dist.] 1967, writ ref'd n.r.e.) Hester Roberts v. Donna Irr. District, Hidalgo County No. 1, 239 S.W. 992 (Tex.Civ.App. — San Antonio 1922, no writ). All of appellant's points of error have been considered and all are overruled.
The substance of appellee's contention is that the statute should be construed to have a retroactive or ex post facto effect. Our Supreme Court in the case of Freeman et al. v. W. B. Walker Sons, Tex.Com.App., 212 S.W. 637, wrote upon this question as was then contained in Article 2178, R.C.S. 1911. The court held in that case, in substance, that while it is presumed the Legislature of Texas intended to exercise its authority to make laws within the scope of its powers under the Constitution of this state, yet, under Article 1, sec. 16, of our Constitution, Vernon's Ann.St. it is provided: 'No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.' It has been held by our Supreme Court that statutes cannot be held to have a retroactive or ex post facto effect unless their language compels it. Texas N. O. R. Co. v. Wellsfargo Express Co., 101 Tex. 564, 110 S.W. 38. All statutes are held to operate prospectively unless the contrary construction is evidently required by their plain and unequivocal language. Cox v. Robison, 105 Tex. 426, 150 S.W. 1149.
The language is that, "Where a trust is created, * * * or where a conveyance or transfer is made to a trustee, * * * the trustee shall be held to have power to convey or transfer or incumber the title, and whenever he shall execute," etc., and is appropriate language to indicate that the act was intended to speak prospectively, and to apply only to conveyances of the trustee after the statute had become effective. Freeman v. Terrell (Tex.Com.App.) 284 S.W. 946; G., H. S. A. Ry. Co. v. Wurzbach (Tex.Civ.App.) 189 S.W. 1006; Slate v. City of Fort Worth (Tex.Civ.App.) 193 S.W. 1143; City of Fort Worth v. Morrow (Tex.Civ.App.) 284 S.W. 275; Texas N. O. R. Co. v. Express Co., 101 Tex. 564, 110 S.W. 38; Cox v. Robison, 105 Tex. 426, 150 S.W. 1149. We are also of the opinion that since both the trust agreement and the deed of trust were executed long prior to the enactment of the statute, and that since the rights of the parties had been fixed by these contracts long before the enactment of the statute, to hold the act applied retroactively as to them would render it obnoxious to article 1, § 16, of the state Constitution, which prohibits the making of any retroactive law.
In those cases the court, in speaking of the contract existing between the railway company and the express company which included an agreement on the part of the railway company to furnish "free" transportation to the employés of the express companies, say: "Being in existence when the statute took effect, it (the free pass) is not given or granted thereafter by the carrying out of the contract, and hence the carrying out of the contract would not come within * * * (the statute), which denounces only acts that may be committed after its adoption." T. N. O. R. Co. v. Wells Fargo Ex. Co., 101 Tex. 564, 110 S.W. 38; G., C. S. F. R. Co. v. Wells Fargo Ex. Co. (Sup.) 110 S.W. 41. We therefore conclude that the agreement by which appellant was to furnish appellee the transportation went into effect prior to July 12, 1907, the date when the "anti-pass law" was first in force, and that therefore the provisions of said law did not apply to said contract, and to such extent we are compelled to depart from the legal conclusions of the trial court.