Gary Perez and Matilde Torres v. City of San Antonio

Supreme Court of Texas
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No. 24-0714
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Gary Perez and Matilde Torres,
Appellants,

v.

City of San Antonio,
Appellee

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

JUSTICE SULLIVAN, dissenting.

Last summer, the U.S. Court of Appeals for the Fifth Circuit
asked us whether Article I, Section 6-a of the Texas Constitution
“impose[s] a categorical bar on any limitation of any religious service,
regardless of the sort of limitation and the government’s interest in that
limitation.” With deepest respect for my esteemed friends on the Fifth
Circuit and on our Court, I would decline this expansive invitation to
issue an advisory opinion on a “new provision” of our Bill of Rights that
“[n]o Texas court has construed.” 711 S.W.3d 204, 204 (Tex. 2024)
(statement of Young, J.).
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The Fifth Circuit panel that certified this question initially held
that the plaintiffs’ “sparse briefing” made the Section 6-a issue “a
determination we need not reach in the instant case.” 98 F.4th 586,
611–12 (5th Cir.), reh’g granted and opinion withdrawn, 115 F.4th 422
(5th Cir. 2024). The plaintiffs’ opening brief in that court argued that
Section 6-a “does not even allow the City to try to satisfy strict scrutiny;
it is a categorical bar on what the City seeks to do.” Appellants’ Br. at
32, Cause No. 23-50746 (5th Cir. Nov. 8, 2023); see also id. at 3–4, 28–29,
47–51. But the plaintiffs devoted the bulk of their briefing to three other
claims, and the Fifth Circuit followed their lead. See 98 F.4th at
594–611 (rejecting claims under the Texas Religious Freedom
Restoration Act, the Free Exercise Clause of the U.S. Constitution, and
Article I, Section 6 of the Texas Constitution); id. at 614 (Higginson, J.,
concurring in part and dissenting in part) (“Plaintiffs have
demonstrated a likely violation of their rights under the Texas Religious
Freedom Restoration Act . . . .”).
On rehearing, however, the divided three-judge panel
“pretermit[ted] further consideration of those claims.” 115 F.4th at 427.
The Fifth Circuit did so by certifying the Section 6-a question that, in its
own words, the plaintiffs “did not adequately brief.” Id. at 423. To wit:
Does the “Religious Service Protections” provision of the
Constitution of the State of Texas—as expressed in
Article [I], Section 6-a—impose a categorical bar on any
limitation of any religious service, regardless of the sort of
limitation and the government’s interest in that limitation?
Id. at 428.

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II
I don’t think this Court should answer the Fifth Circuit’s
question. Neither do my wise colleagues, judging from the majority
opinion. Today’s opinion is characteristically thoughtful but tellingly
nonresponsive. Rather than answer a question we wish had been asked,
we should exercise our discretion not to issue the advisory opinion that
was actually requested. See TEX. R. APP. P. 58.1 (“The Supreme Court
may decline to answer the questions certified to it.”).
To answer a certified question is to give an advisory opinion. See,
e.g., Tex. Dep’t of Fam. & Protective Servs. v. Grassroots Leadership, Inc.,
___ S.W.3d ___, 2025 WL 1642437, at *1, *7, *21 (Tex. May 30, 2025);
Lucas v. United States, 757 S.W.2d 687, 702 n.1 (Tex. 1988) (Phillips,
C.J., dissenting); cf. United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d
855, 858–64 (Tex. 1965). The Section 6-a question that has been
certified to us here seeks “an advisory opinion [on] an abstract question
of law.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444
(Tex. 1993). To “dispense contingent advice” on so “academic” a question
wouldn’t be “[p]rudent.” City of Dallas v. Albert, 354 S.W.3d 368, 384
(Tex. 2011) (Willett, J., dissenting); see also Patterson v. Planned
Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998)
(“Refraining from issuing advisory opinions and waiting for cases’ timely
factual development is . . . essential to the proper development of the
[S]tate’s jurisprudence.”).
Perhaps recognizing as much, the majority refuses this certified
request to take Section 6-a and “really explore the studio space.”
Saturday Night Live: More Cowbell (NBC television broadcast Apr. 8,

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2000). As the majority sensibly explains, “we need not endeavor to
comprehensively define [Section 6-a’s] scope to provide a helpful answer
here.” Ante at 23. Instead, it opines that the Section 6-a claim urged by
these federal-court plaintiffs is a loser: “To whatever extent we could
construe the text broadly to encompass [the plaintiffs’] claims,
[Section 6-a’s] linguistic and historical context establishes that it does
not encompass ‘limitations’ on religious services that result from the
government’s preservation and maintenance of the natural features of
public lands.” Id. at 35.
To my eye, the majority opinion doesn’t “confine [its] answer to
the question propounded by the certifying court.” Amberboy v. Societe
de Banque Privee, 831 S.W.2d 793, 798 (Tex. 1992). That’s a problem,
because we lack jurisdiction to issue an advisory opinion that answers a
certified question the Fifth Circuit didn’t ask. “Our jurisdiction in these
matters is exclusively to ‘answer questions.’ ” Richards v. State Farm
Lloyds, 597 S.W.3d 492, 497 n.6 (Tex. 2020) (quoting TEX. CONST. art. V,
§ 3-c(a)). “To avoid exceeding our jurisdiction, ‘we answer only the
questions certified and nothing more.’ ” Id. (quoting Moreno v. Sterling
Drug, Inc., 787 S.W.2d 348, 349 (Tex. 1990)).
The majority responds that it’s just trying “to answer the question
in a way that helps the federal courts resolve the case.” Ante at 24 n.30.
Lending a hand is all well and good, provided we have jurisdiction to do
so. But will it really help the Fifth Circuit to know that, in this Court’s
(perhaps uninvited) opinion, these plaintiffs can’t win under
Section 6-a? The plaintiffs already lost that fight, after all, when they
forfeited their Section 6-a argument through inadequate briefing before

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the three-judge panel. See 98 F.4th at 611–12 (condemning the
plaintiffs’ “sparse briefing”); see also id. at 597 (“A party forfeits
arguments by inadequately briefing them on appeal.”). Even on panel
rehearing, the Fifth Circuit seemingly reiterated that the plaintiffs “did
not adequately brief that issue,” before certifying the Section 6-a
question to us anyway. 115 F.4th at 423. Given that our rules insist on
answering “determinative questions of Texas law,” TEX. R. APP. P. 58.1
(emphasis added), we shouldn’t go out of our way to torpedo a Section 6-a
claim that might sink anyway due to forfeiture when the plaintiffs
return to the Fifth Circuit. 1
Were we at liberty to give an advisory opinion on a state-law
question nobody asked us, the plaintiffs might fare better with their
claims under the Texas Religious Freedom Restoration Act or Article I,
Section 6 of the Texas Constitution. Perhaps we would agree that they
“have demonstrated a likely violation of their rights under the Texas
Religious Freedom Restoration Act.” 98 F.4th at 614 (Higginson, J.,
concurring in part and dissenting in part); cf. In re B.L.D., 113 S.W.3d

1 On my understanding of federal procedure, the plaintiffs couldn’t plug

the forfeiture hole by saying more about Section 6-a in their petitions for panel
rehearing and rehearing en banc than had been said in their appellants’ brief.
See, e.g., Hightower v. Tex. Hosp. Ass’n, 73 F.3d 43, 44 (5th Cir. 1996) (“In their
petition for rehearing, appellees have raised a number of arguments that they
did not make to this court in their original appellate briefs. . . . These
arguments have been raised too late in the appellate process to be useful to
this court, and they are deemed waived and have played no role in our
decision.”); FED. R. APP. P. 28(a)(8)(A) (“The appellant’s brief must contain . . .
the argument, which must contain . . . appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the record on which the
appellant relies . . . .”). But my understanding doesn’t really matter: The
forfeiture question can be decided only by the Fifth Circuit’s distinguished
three-judge panel, or by all seventeen of its active judges sitting en banc.

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340, 349 (Tex. 2003) (“As a rule, we only decide constitutional questions
when we cannot resolve issues on nonconstitutional grounds.”). Or
maybe we’d finally stop assuming that Employment Division v. Smith,
494 U.S. 872 (1990), reflects a sound construction of Section 6. See Tex.
Dep’t of State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648, 677
(Tex. 2022) (Young, J., concurring) (noting that “freedom of worship”
under TEX. CONST. art. I, § 6 is “provided with much greater detail than
[its] federal analogue[ ]”). The majority opinion “[e]xpress[es] no
opinions as to those claims,” however, because they’re not included
within a certified question that “ ‘pretermit[s]’ ” their consideration.
Ante at 35 (quoting 115 F.4th at 427). True enough. But neither has
the Fifth Circuit asked us to pick a winner under Section 6-a.
III
As then-Justice Cornyn once explained, “[t]he Fifth Circuit . . .
has had more extensive experience with certification than any other
court, state or federal.” Amberboy, 831 S.W.2d at 798 n.10. In 1960,
with encouragement from Justice Frankfurter, the Fifth Circuit sent the
very first certified question to a state supreme court. See Sun Ins. Off.,
Ltd. v. Clay, 319 F.2d 505, 508 (5th Cir. 1963); Clay v. Sun Ins. Off. Ltd.,
363 U.S. 207, 212 & n.3 (1960). This Court, by contrast, only started
accepting certified questions after the People of Texas gave us
“jurisdiction to answer questions of state law certified from a federal
appellate court” in 1985. TEX. CONST. art. V, § 3-c(a).
Four decades later, our two courts have established a strong
tradition of “cooperative judicial federalism.” Lehman Bros. v. Schein,
416 U.S. 386, 391 (1974). In unfailingly gracious terms, the Fifth Circuit

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often certifies questions of Texas law for our consideration. 2 In turn,
this Court works hard to answer them with alacrity and good cheer. 3

2 See, e.g., Am. Pearl Grp., L.L.C. v. Nat’l Payment Sys., L.L.C.,
No. 23-10804, 2024 WL 4132409, at *8 (5th Cir. Sept. 10, 2024) (per curiam)
(“[T]he Supreme Court of Texas has historically been very prompt in its
certification responses.”); Fire Prot. Serv., Inc. v. Survitec Survival Prods., Inc.,
18 F.4th 802, 805 (5th Cir. 2021) (“The Supreme Court of Texas has graciously
accepted and promptly answered our questions time and again.”); McMillan v.
Amazon.com, Inc., 983 F.3d 194, 203 & n.51 (5th Cir. 2020) (“But by long
tradition, the Texas Supreme Court graciously accepts and prioritizes certified
questions from this circuit, and we are confident that the Court’s impressive
streak of timely clearing its docket will remain unbroken. No pressure.”); cf.
Jefferson v. Lead Indus. Ass’n, 106 F.3d 1245, 1247 (5th Cir. 1997) (per curiam)
(“[C]ertification is such an important resource to this court that we will not
risk its continued availability by going to that well too often.”); Transcon. Gas
Pipeline Corp. v. Transp. Ins. Co., 958 F.2d 622, 623 (5th Cir. 1992) (per
curiam) (“Certification to State Supreme Courts is a valuable resource of this
court, so we dare not abuse it by over use lest we wear out our welcome.”).

3 See, e.g., Am. Pearl Grp., L.L.C. v. Nat’l Payment Sys., L.L.C., ___

S.W.3d ___, 2025 WL 1478179 (Tex. May 23, 2025); Butler v. Collins, ___
S.W.3d ___, 2025 WL 1478180 (Tex. May 23, 2025); Port Arthur Cmty. Action
Network v. Tex. Comm’n on Env’t Quality, 707 S.W.3d 102 (Tex. 2025); Roe v.
Patterson, 707 S.W.3d 94 (Tex. 2025); Carl v. Hilcorp Energy Co., 689 S.W.3d
894 (Tex. 2024); Hogan v. S. Methodist Univ., 688 S.W.3d 852 (Tex. 2024);
Moore v. Wells Fargo Bank, N.A., 685 S.W.3d 843 (Tex. 2024); Rodriguez v.
Safeco Ins. Co., 684 S.W.3d 789 (Tex. 2024); Sanders v. Boeing Co., 680 S.W.3d
340 (Tex. 2023); Brown v. City of Houston, 660 S.W.3d 749 (Tex. 2023); Tex.
Med. Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424 (Tex. 2023);
Gabriel Inv. Grp., Inc. v. Tex. Alcoholic Beverage Comm’n, 646 S.W.3d 790 (Tex.
2022); Paxton v. Longoria, 646 S.W.3d 532 (Tex. 2022); Fire Prot. Serv., Inc. v.
Survitec Survival Prods., Inc., 649 S.W.3d 197 (Tex. 2022); Whole Woman’s
Health v. Jackson, 642 S.W.3d 569 (Tex. 2022); Maxim Crane Works, L.P. v.
Zurich Am. Ins. Co., 642 S.W.3d 551 (Tex. 2022); Monroe Guar. Ins. Co. v.
BITCO Gen. Ins. Corp., 640 S.W.3d 195 (Tex. 2022); Dillon Gage Inc. of Dall.
v. Certain Underwriters at Lloyds Subscribing to Pol’y No. EE1701590, 636
S.W.3d 640 (Tex. 2021); Amazon.com, Inc. v. McMillan, 625 S.W.3d 101 (Tex.
2021); Fed. Home Loan Mortg. Corp. v. Zepeda, 601 S.W.3d 763 (Tex. 2020);
Richards, 597 S.W.3d 492; Degan v. Bd. of Trs. of Dall. Police & Fire Pension
Sys., 594 S.W.3d 309 (Tex. 2020).

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“We find such cooperative effort to be in the best interests of an orderly
development of our own unique jurisprudence, and to the bar, as well as
in the best interests of the litigants we concurrently serve.” Amberboy,
831 S.W.2d at 798 n.9.
Our productive partnership with the Fifth Circuit will surely
endure, despite my misgivings about one out of many certified questions.
Because I would decline to answer this particular question, though, I
respectfully dissent.

James P. Sullivan
Justice

OPINION FILED: June 13, 2025

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