In Re Demaree Reed

Supreme Court of Texas
══════════
No. 25-0149
══════════

In re Demaree Reed,
Relator

═══════════════════════════════════════
On Petition for Writ of Mandamus
═══════════════════════════════════════

JUSTICE YOUNG, with whom Justice Hawkins joins, concurring.

Our primary-jurisdiction doctrine emerged from its federal
counterpart. As first adopted by the federal courts and later endorsed by
this Court, primary jurisdiction served a narrow purpose: when an issue
within an agency’s exclusive jurisdiction arose in a case, courts would
pause the suit and allow the agency to resolve that issue. The doctrine
thus helped avoid friction among the branches and facilitated rapid,
accurate decisions by whatever governmental entity was lawfully
empowered to make them. But over time, the doctrine’s reach has
expanded considerably, and it is worth asking whether that expansion has
gone too far. Today’s version of the doctrine may work at cross-purposes
with its original justification. Rather than allowing the executive branch
to do its job without improper judicial interference, the doctrine may impede
the judiciary in properly performing its work.
Today’s case requires no final determination of the primary-
jurisdiction doctrine’s fate, and I gladly concur in the Court’s well-reasoned
opinion. I write separately with a view to future cases. I briefly delineate
the doctrine’s origin and explain why we should consider restoring its
original formulation, or even discarding it altogether, if we conclude that
now-existing tools render it obsolete. We will be greatly aided if the lower
courts, the bar, legal academics, and amici likewise refocus attention on
the Texas primary-jurisdiction doctrine.
* * *
The federal primary-jurisdiction doctrine, in Judge Posner’s words,
“is really two doctrines.” Arsberry v. Illinois, 244 F.3d 558, 563 (7th Cir.
2001). In its “central and original form,” the doctrine “applies only when,
in a suit involving a regulated [entity] but not brought under the regulatory
statute itself, an issue arises that is within the exclusive original
jurisdiction of the regulatory agency to resolve,” id., thus functioning as
an exclusive-agency-jurisdiction doctrine. “If the agency’s resolution of the
issue does not dispose of the entire case,” therefore, “the case can resume
subject to judicial review of that resolution along whatever path governs
review of the agency’s decisions, whether back to the court in which the
original case is pending or, if the statute governing review of the agency’s
decisions designates another court, to that court.” Id.
Before turning to the doctrine’s “second” version, it is worth pausing
to trace the original formulation back to the U.S. Supreme Court’s seminal
primary-jurisdiction-doctrine case, Texas & Pacific Railway Co. v. Abilene
Cotton Oil Co., 204 U.S. 426 (1907). Coincidentally, that case concerned
whether a Texas state court lacked jurisdiction to entertain a common-law
suit challenging an interstate railway’s shipping rates because such claims
“must, under the [Interstate Commerce Act], primarily invoke redress

2
through the Interstate Commerce Commission, which body alone is vested
with power originally to entertain proceedings for the alteration of an
established schedule . . . .” Id. at 448 (emphasis added).
That question followed from Congress’s having created a
comprehensive regulatory scheme in which the ICC—the first modern
federal regulatory agency—“was endowed with plenary administrative
power to supervise the conduct of carriers, to investigate their affairs, their
accounts, and their methods of dealing, and generally to enforce the
provisions of the act” by, among other things, “hear[ing] complaints
concerning violations of the [ICA]” and “order[ing] the carrier to desist from
such violation[s] in the future.” Id. at 438. And in the event the carrier
refused to comply, the ICC could “compel compliance by invoking the
authority of the courts of the United States . . . , prima facie effect in such
courts being given to the findings of fact made by the Commission.” Id.
Allowing individual courts and juries to adjudicate whether any particular
rate was reasonable, the Court concluded, would generate disuniformity
that would undermine the ICA’s purpose. See id. at 440–41. Courts
therefore had “no primary jurisdiction to fix rates” and thus could not “do
so at the suit of a single plaintiff who claims to have been damaged because
an allowance paid its competitors was unreasonable in amount.” Mitchell
Coal & Coke Co. v. Pa. R.R. Co., 230 U.S. 247, 256 (1913).
The Court continued to apply the primary-jurisdiction doctrine as
an exclusive-agency-jurisdiction doctrine (and in this single context) in the
early twentieth century. The cases were primarily interstate-railway
disputes in which litigants asked federal or state courts, rather than the
ICC, to exercise concurrent jurisdiction over questions that implicated the

3
ICC’s core regulatory authority. See, e.g., N. Pac. Ry. Co. v. Solum, 247
U.S. 477, 484 (1918) (concluding that Minnesota courts “may not be
resorted to” to assess the reasonableness of a railway’s routing decision
until the ICC had first resolved the question); Midland Valley R.R. Co. v.
Barkley, 276 U.S. 482, 485 (1928) (holding that an Arkansas state-court
action challenging a railway’s failure to furnish cars could not be
maintained because the reasonableness inquiry was “a matter for the
[ICC],” not courts); see also Rochester Tel. Corp. v. United States, 307 U.S.
125, 139 n.22 (1939) (collecting cases); Diana R.H. Winters, Restoring the
Primary Jurisdiction Doctrine, 78 Ohio St. L.J. 541, 552–62 (2017) (tracing
the primary-jurisdiction doctrine’s evolution and arguing that its original
conception developed in the rate-setting and labor contexts).
Although the doctrine’s original formulation arose to address ICC
rate-setting issues, by the 1930s the Court had given the doctrine “general
application” in any comparable regulatory context. See Rochester Tel., 307
U.S. at 139 n.22 (citing U.S. Navigation Co. v. Cunard S.S. Co., 284 U.S.
474 (1932) (Shipping Board), and Myers v. Bethlehem Shipbuilding Corp.,
303 U.S. 41 (1938) (National Labor Relations Board)). The Court, for
example, construed the Shipping Act of 1916 consistent with the “settled
construction” of the ICA, under which the “questions essentially of fact and
those involving the exercise of administrative discretion . . . were primarily
within [the ICC’s] exclusive jurisdiction.” Cunard, 284 U.S. at 481. Just
as the ICC exercised primary jurisdiction over rate-setting disputes for
land carriers, the Shipping Board occupied an analogous role for water
carriers and therefore had “exclusive preliminary jurisdiction” over certain
issues arising under the Shipping Act. Id. at 485. Accordingly, courts could

4
not entertain certain antitrust challenges to the underlying shipping
agreements until the Shipping Board had first passed on their validity.
See id. at 487–88.
As originally formulated, therefore, the primary-jurisdiction doctrine
applies “where a claim is originally cognizable in the courts, and comes into
play whenever enforcement of the claim requires the resolution of issues
which, under a regulatory scheme, have been placed within the special
competence of an administrative body; in such a case the judicial process
is suspended pending referral of such issues to the administrative body for
its views.” United States v. W. Pac. R.R. Co., 352 U.S. 59, 63–64 (1956)
(holding that certain questions of tariff construction and reasonableness
were within the ICC’s “exclusive primary jurisdiction”); see also Reiter v.
Cooper, 507 U.S. 258, 268 (1993) (describing primary jurisdiction in that
way and adding that it requires a court to “stay[] further proceedings so as
to give the parties reasonable opportunity to seek an administrative ruling”).
In other words, it applies where “the court has jurisdiction of the case, but
the agency of the issue.” Arsberry, 244 F.3d at 564.
At some point, however, lower federal courts enlarged the doctrine,
giving rise to a second, advice-seeking formulation. This version of the
doctrine applies not when an agency has exclusive jurisdiction to initially
resolve an issue, but rather when “either court and agency have concurrent
jurisdiction to decide an issue, or only the court has the power to decide it,
and seeks merely the agency’s advice.” Id. The expansion is obvious. The
doctrine makes sense when a non-judicial entity lawfully has sole authority
to make a determination. It is less justifiable, but still plausible, when
such an entity has concurrent authority along with the courts. But it is hard

5
to justify at all if the courts have sole authority.
The origin of this expansion of the doctrine is unclear. It seems to
have developed primarily in the federal appellate courts. See id. at 563–64
(collecting cases); Winters, supra, at 569–72 (enumerating the factors
federal appellate courts consider when applying the doctrine). The U.S.
Supreme Court has never squarely endorsed it. (Indeed, the last time the
Court appears to have applied the doctrine at all in a majority opinion was
28 years ago in Marquez v. Screen Actors Guild, Inc., 525 U.S. 33 (1998).)
But the Court at least has hinted that the primary-jurisdiction doctrine
may have broader application than its original conception. See, e.g., Ricci
v. Chi. Mercantile Exch., 409 U.S. 289, 305 (1973) (stating that “prior agency
adjudication of” the dispute would “be a material aid in ultimately deciding
whether the Commodity Exchange Act forecloses this antitrust suit”);
Pharm. Rsch. & Mfrs. of Am. v. Walsh, 538 U.S. 644, 673 (2003) (Breyer,
J., concurring in part and in the judgment) (enumerating prudential
considerations—including “whether preliminary reference of issues to the
agency will promote th[e] proper working relationship between court and
agency”—that inform the primary-jurisdiction doctrine’s application).
This Court, too, has been somewhat imprecise when it comes to
applying our own primary-jurisdiction doctrine, and we, too, have allowed
it to expand dramatically. We first endorsed it by refusing the application
for writ of error in Kavanaugh v. Underwriters Life Insurance Co., in which
the court of civil appeals held that the Board of Insurance Commissioners
had primary jurisdiction to determine whether an insurance company’s
directors were mismanaging the company and therefore should be
removed. 231 S.W.2d 753, 756 (Tex. Civ. App.—Waco 1950, writ ref’d).

6
Because the board had the statutory authority and duty “to regulate and
control mutual assessment companies” and “give all the relief [the
plaintiffs] sought,” the court held that the plaintiffs “should first apply to
the Board for relief before seeking redress in the courts.” Id. Accordingly,
the trial court had correctly sustained the defendants’ plea to the
jurisdiction. Id. This application of our primary-jurisdiction doctrine,
therefore, largely mirrored the federal primary-jurisdiction doctrine’s
original form.
We similarly treated primary jurisdiction as an exclusive-agency-
jurisdiction doctrine in Gregg v. Delhi-Taylor Oil Corp., the central
question in which was
whether the courts have the power to determine whether a
subsurface trespass is occurring or is about to occur, or
whether the Railroad Commission has this power to the
exclusion of the courts, with the courts having the power only
to review, under the substantial evidence rule, or otherwise,
the action of the Commission.
344 S.W.2d 411, 412 (Tex. 1961) (emphasis added). We determined that
the primary-jurisdiction doctrine did not apply precisely because the
questions were “primarily judicial in nature.” Id. at 415. And “[w]here
the issue is one inherently judicial in nature . . . , the courts are not
ousted from jurisdiction unless the Legislature, by a valid statute, has
explicitly granted exclusive jurisdiction to the administrative body.” Id.
In our more recent primary-jurisdiction cases, however, we have
applied the doctrine more broadly. Indeed, because we have developed a
separate basis for enforcing exclusive-agency jurisdiction, we have
abandoned the use of the primary-jurisdiction doctrine as a tool for ensuring
that courts stand down when agencies have exclusive jurisdiction. We

7
have treated the two doctrines as separate, explaining that exclusive-
agency jurisdiction arises “when the Legislature gives the agency alone the
authority to make the initial determination in a dispute” and authorizes
courts to “review the administrative action only at the time and in the
manner designated by statute.” Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d
12, 15 (Tex. 2000). In other words, “when a pervasive regulatory scheme
indicates that” the legislature “intended for the regulatory process to be
the exclusive means of remedying the problem to which the regulation is
addressed,” courts lack jurisdiction to consider claims implicating the
agency’s exclusive jurisdiction. Subaru of Am., Inc. v. David McDavid
Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002) (quotation marks omitted).
In theory, the Texas primary-jurisdiction doctrine could still apply
to an issue over which an agency has exclusive jurisdiction despite the
courts’ having authority over the dispute as a whole. But when that
happens, we no longer talk about primary jurisdiction—we just apply the
exclusive-jurisdiction rules. In contemporary usage, we have said that
primary jurisdiction is a wholly “prudential doctrine.” Forest Oil Corp. v.
El Rucio Land & Cattle Co., 518 S.W.3d 422, 429 (Tex. 2017); see also
Subaru, 84 S.W.3d at 220 (“Despite similar terminology, primary
jurisdiction is prudential whereas exclusive jurisdiction is jurisdictional.”).
Accordingly, the primary-jurisdiction doctrine currently “arises
when a court and an agency have concurrent original jurisdiction over a
dispute.” Cash Am., 35 S.W.3d at 18 (emphasis added); see Subaru, 84
S.W.3d at 221 (explaining that this “judicially-created primary jurisdiction
doctrine operates to allocate power between courts and agencies when both
have authority to make initial determinations in a dispute”). If there is

8
concurrent jurisdiction, we have said, courts “should allow an
administrative agency to initially decide an issue when: (1) an agency is
typically staffed with experts trained in handling the complex problems in
the agency’s purview; and (2) great benefit is derived from an agency’s
uniformly interpreting its laws, rules, and regulations, whereas courts and
juries may reach different results under similar fact situations.” Forest
Oil, 518 S.W.3d at 429–30. The agency’s initial determination, in turn,
may not bind the court post-referral. See Cash Am., 35 S.W.3d at 18
(explaining that the doctrine’s purpose includes “ensuring that
administrative agencies decide, at least initially, questions that”
implicate agency expertise); see also, e.g., Butnaru v. Ford Motor Co., 84
S.W.3d 198, 209 (Tex. 2002) (holding that the Motor Vehicle Board has
“primary jurisdiction to determine, at least in the first instance, whether
a right of first refusal violates the” Motor Vehicle Commission Code).
As I read our cases, our modern primary-jurisdiction doctrine has
mostly become a mechanism for judges to learn an agency’s view of an issue
before a court ultimately decides it. If so, then the doctrine’s legal effect
undermines its modern justification. Courts refer proceedings to agencies
in the name of expertise and uniformity while simultaneously disclaiming
any obligation to adopt the agency’s conclusion. If the agency’s initial
determination does not bind courts, uniformity is a largely illusory benefit,
and agency expertise in and of itself does not impart decision-making
authority. Litigants, in turn, face delayed resolution of their claims and
pay additional legal fees—all so courts can hear what an agency thinks
about an issue that is squarely within the judiciary’s power to decide.
All of that strikes me as an inefficient and even somewhat dubious

9
way to obtain what is essentially an amicus brief. But, to be clear, I think
that it can be highly desirable for courts to have the views of the government
in cases where a judicial decision is likely to significantly affect regulatory
programs in which agencies hold vast expertise and responsibility. The
judiciary may have the obligation to decide legal issues without legal
deference to an agency, but at the same time it should exhibit the virtue of
humility by seeking information that we judges otherwise would lack.
Indeed, as I have said before, “I am unaware of any appellate system that
is as welcoming of amicus participation” as ours is, and far from being
frustrated by too many amici’s voices, “I frequently regret the absence of
any amicus briefs” in even the most important cases. Perez v. City of San
Antonio, 711 S.W.3d 204, 205 (Tex. 2024) (statement of Young, J.,
respecting the denial of the motion for participation in oral argument). I
imagine that useful assistance is even less frequently forthcoming in the
lower courts, but it would surely be at least as helpful. Especially when
the interests of a co-equal branch of government are at stake, I would
expect any Texas judge to welcome amicus submissions flexibly and
respectfully. When the government has responsibility over a regulatory
area, expertise in its underlying contours, and a stake in the work of the
courts, we should expect its views to have the “power to persuade, if lacking
power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Courts
may retain the obligation—often the burden—to decide independently, but
only a foolish court would reject the opportunity to avoid error by receiving
the views of those able to assist it.
All of this is to say that the primary-jurisdiction doctrine may be out
of date in its modern manifestation, but courts should not draw from that

10
conclusion that they ought to close their eyes and ears to the views of the
executive branch. They should consider alternative means of soliciting an
agency’s advice while avoiding the practical costs that a formal referral
would impose. They could simply invite agencies to participate as amici
curiae. See, e.g., Ryan v. ChemLawn Corp., 935 F.2d 129, 132 (7th Cir.
1991) (reversing referral to the Environmental Protection Agency based on
primary jurisdiction and noting that “[i]f the district court believed that it
needed specific information from the EPA to decide this case, it could have
asked the EPA to file an amicus brief”). And the respect that judges pay
submissions from the executive branch should, I would hope, lead entities
within that branch to begin to offer those views even without invitation. If
an agency is concerned about uniformity, for example, one way to promote
it is to express the agency’s views to courts that confront cases that can
help generate uniformity (or avoid spreading disuniformity).
But if referral does bind courts—or if, perhaps more likely, courts
simply rubber-stamp agency conclusions—primary jurisdiction would
often implicate a host of constitutional concerns, including the separation
of powers and the right to a jury trial. See In re CenterPoint Energy
Houston Elec., LLC, 629 S.W.3d 149, 164 (Tex. 2021) (plurality opinion)
(“Courts are not free to outsource to [an agency] the authority to adjudicate
common-law questions and factual disputes properly decided by judges and
juries.”); cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412–13 (2024)
(concluding that federal courts may not cede the task of legal interpretation
to administrative agencies); SEC v. Jarkesy, 603 U.S. 109, 120–21 (2024)
(holding that, when an agency’s civil-enforcement action resembles a
common-law cause of action and the “public rights” exception to Article III

11
jurisdiction does not apply, the Seventh Amendment guarantees a jury-
trial right).
We need not resolve these important questions today because Rail
Link has not asked the Surface Transportation Board to exercise concurrent
jurisdiction over the underlying FELA dispute. But should the primary-
jurisdiction doctrine reach this Court again, and if the petition presents a
question of purely state law, I hope that the Court will consider, at the
least, returning the doctrine to its original formulation rather than allow
it to continue to metastasize.

Evan A. Young
Justice

OPINION FILED: June 19, 2026

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Supreme Court of Texas
══════════
No. 25-0149
══════════

In re Demaree Reed,
Relator

═══════════════════════════════════════
On Petition for Writ of Mandamus
═══════════════════════════════════════

Argued February 12, 2026

JUSTICE HUDDLE delivered the opinion of the Court.

JUSTICE YOUNG filed a concurring opinion, in which Justice
Hawkins joined.

JUSTICE SULLIVAN filed a concurring opinion, in which Justice
Busby and Justice Hawkins joined.

Administrative agencies are creatures of statute. They have the
power to act only when the Legislature—or, in the case of federal
agencies, Congress—grants it to them. Occasionally, the relevant
legislative body grants jurisdiction to an agency to resolve matters that
otherwise would be decided by a court. But such shared jurisdiction is
uncommon. Because altering the usual allocation of power among the
branches is so serious, a court considering whether to refer a judicial
question to an agency must first determine if the legislative body has in
fact authorized the sharing of adjudicative power with respect to the
question at issue. Absent a clear legislative grant of jurisdiction to the
agency on the relevant question, a Texas court cannot refer the question,
even though the court may regard the agency as an expert on the subject
matter and desire the agency’s input.
Here, the parties joined issue at summary judgment regarding
whether the defendant railroad was a “common carrier” under the
Federal Employers’ Liability Act (FELA), the sole statute under which
the injured plaintiff sued. The trial court, in turn, referred the question
to the Surface Transportation Board, a federal agency with jurisdiction
over certain railroad disputes. In its petition to the Board following the
referral, the railroad sought a determination whether it is a common
carrier not under FELA but under a different federal statute. While
Congress accorded the Board jurisdiction over some disputes relating to
railroads, there is no clear jurisdictional grant empowering the Board to
answer the question the parties presented to the trial court: is the
railroad a common carrier potentially subject to liability under FELA?
The trial court thus abused its discretion by issuing the referral order.
We conditionally grant mandamus relief.
I. Background
Demaree Reed, a switchman for Rail Link, Inc., fell from a moving
railcar and had his leg amputated as a result. Reed sued Rail Link for
negligence and gross negligence under FELA, alleging that Rail Link’s
failures to establish adequate safety policies, to train, and to provide a
safe work environment caused his injuries.1

1 Reed also sued a number of other parties. But the order at issue in
this proceeding concerns only Rail Link.

2
Rail Link moved for summary judgment, asserting FELA is
inapplicable because Rail Link is not a “common carrier by railroad.” 2
The trial court denied Rail Link’s motion but on reconsideration agreed
to refer the question of Rail Link’s common-carrier status to the Surface
Transportation Board. To effectuate its decision, the trial court ordered
Rail Link to file a petition with the Board for “a determination of Rail
Link’s status as either a common carrier or as a private contract
operator.”
In filing its petition with the Board, Rail Link modified the
question presented. Rather than ask whether Rail Link is a common
carrier under FELA—the question presented in its motion for summary
judgment—Rail Link’s petition to the Board sought a determination
whether Rail Link is a common carrier under a different statute—the
ICC Termination Act of 1995 (ICCTA). Notably, ICCTA is not at issue
in Reed’s personal-injury suit, which alleges a claim for damages under
FELA. The Board accepted Rail Link’s petition and opened a
declaratory-order proceeding. Reed, meanwhile, sought mandamus

2 The relevant section of FELA provides:

Every common carrier by railroad while engaging in [interstate
or foreign] commerce . . . shall be liable in damages to any
person suffering injury while he is employed by such carrier in
such commerce . . . for such injury or death resulting in whole or
in part from the negligence of any of the officers, agents, or
employees of such carrier . . . .
45 U.S.C. § 51. Although liability under FELA is expressly limited to a
“common carrier by railroad,” that term is undefined in the statute. But see
id. § 57 (expanding the term “common carrier” to include persons or entities
responsible for managing and operating a common carrier’s business).

3
relief from the trial court’s referral order. At his request, the Board
stayed its proceeding while Reed’s mandamus petition was pending.
A divided court of appeals denied mandamus relief. 725 S.W.3d
716, 717 (Tex. App.—Houston [1st Dist.] 2024). Noting first that “Reed
does not challenge the [Board]’s expertise,” the majority concluded,
without substantive analysis, that the trial court did not clearly abuse
its discretion. Id. The dissenting justice would have granted relief. In
his view, the Board “is a rate-setting body, and it does not have
jurisdiction to determine common-carrier status for tort liability under
FELA.” ___ S.W.3d ___, 2024 WL 5248555, at *1 (Tex. App.—Houston
[1st Dist.] Dec. 31, 2024) (Kelly, J., dissenting from denial of rehearing).
II. Discussion
Mandamus relief is appropriate if (1) a trial court clearly abuses
its discretion and (2) there is no adequate appellate remedy. In re Ill.
Nat’l Ins. Co., 685 S.W.3d 826, 834 (Tex. 2024). “An error of law or
erroneous application of law to fact is an abuse of discretion.” In re Kay,
715 S.W.3d 747, 750 (Tex. 2025). Here, Reed assails an order referring
to an administrative agency the question of Rail Link’s status as a
“common carrier by railroad” under FELA. We conclude the trial court
clearly abused its discretion in issuing the referral order and Reed lacks
an adequate remedy by appeal.
A. The trial court clearly abused its discretion by referring the
question of Rail Link’s common-carrier status to the Board.
As “statutory creatures of the Legislature with no inherent
authority of their own,” Harris Cnty. Appraisal Dist. v. Tex. Workforce
Comm’n, 519 S.W.3d 113, 130 (Tex. 2017), administrative agencies have
“only those powers expressly conferred and necessary to accomplish

4
[their] duties,” In re CenterPoint Energy Hou. Elec., LLC, 629 S.W.3d
149, 156 (Tex. 2021) (quoting Oncor Elec. Delivery Co. v. Chaparral
Energy, LLC, 546 S.W.3d 133, 138 (Tex. 2018)). “[T]here is no
presumption that administrative agencies are authorized to resolve
disputes.” Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d
212, 220 (Tex. 2002). Rather, “[w]e presume that district courts are
authorized to resolve disputes unless the Constitution or other law
conveys exclusive jurisdiction on another court or administrative
agency.” In re Sw. Bell Tel. Co., 235 S.W.3d 619, 624 (Tex. 2007); see
TEX. CONST. art. V, § 8. An agency’s adjudicative jurisdiction may be
either concurrent or exclusive, but in either case, that jurisdiction must
be clearly established by the legislative body that created it. See Univ.
of Tex. Rio Grande Valley v. Oteka, 715 S.W.3d 734, 739 (Tex. 2025).
These principles apply equally to federal agencies created by Congress.
See Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety &
Health Admin., 595 U.S. 109, 117 (2022) (“Administrative agencies are
creatures of statute. They accordingly possess only the authority that
Congress has provided.”).
Exclusive jurisdiction arises when “the Legislature has granted
[an] agency the sole authority to make an initial determination in a
dispute,” In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004), or when
“a pervasive regulatory scheme indicates that the Legislature intended
for the regulatory process to be the exclusive means of remedying the
problem to which the regulation is addressed,” Sw. Bell Tel., 235 S.W.3d
at 624–25. In such a case, until a party exhausts all administrative
remedies, “the trial court lacks subject-matter jurisdiction and must

5
dismiss the claims within the agency’s exclusive jurisdiction.” Forest Oil
Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 428 (Tex. 2017).
No party here contends that the Board has exclusive jurisdiction.
Instead, the parties frame the issue as one of primary
jurisdiction—“an administrative law doctrine that arises when a court
and an agency have concurrent original jurisdiction over a dispute.”
Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 18 (Tex. 2000) (emphasis
added). The primary jurisdiction doctrine was first developed by the
U.S. Supreme Court in Texas & Pacific Railway Co. v. Abilene Cotton
Oil Co., 204 U.S. 426 (1907). Formally adopted into Texas law in 1950,3
the doctrine “operates to allocate power between courts and agencies
when both have authority to make initial determinations in a dispute.”
Subaru, 84 S.W.3d at 221. When particular issues underlying the
dispute “have been placed within the special competence of an
administrative body[,] . . . the judicial process is suspended pending
referral of such issues to the administrative body for its views.” United
States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956). Our Court has
explained that, when the doctrine applies, trial courts “should abate the
lawsuit and suspend finally adjudicating the claim until the agency has
an opportunity to act on the matter.” Butnaru v. Ford Motor Co., 84
S.W.3d 198, 208 (Tex. 2002). Provided the agency has the necessary

3 See Gregg v. Delhi-Taylor Oil Corp., 344 S.W.2d 411, 414 (Tex. 1961)

(noting that the Court “gave its approval to the application of the doctrine of
primary jurisdiction” in Kavanaugh v. Underwriters Life Insurance Co., 231
S.W.2d 753 (Tex. App.—Waco 1950, writ ref’d)); see also Ferreira v. Butler, 575
S.W.3d 331, 335 n.29 (Tex. 2019) (noting that, since 1927, the Court’s refusal
of an application for writ of error or petition for review gives the court of
appeals’ opinion “the precedential value of one of our own”).

6
authority, we have said that deference is appropriate “when: (1) [the]
agency is typically staffed with experts trained in handling the complex
problems in the agency’s purview; and (2) great benefit is derived from
[the] agency’s uniformly interpreting its laws, rules, and regulations,
whereas courts and juries may reach different results under similar fact
situations.” Subaru, 84 S.W.3d at 221. Importantly, the primary
jurisdiction doctrine presumes that the agency has been granted
authority to exercise adjudicative power alongside a court. Absent an
express grant of concurrent jurisdiction to an agency, there is no shared
power to allocate because the adjudicative power remains exclusively in
courts.
Reed argues that we should abrogate, or at least narrow, the
primary jurisdiction doctrine. In his view, after the U.S. Supreme
Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369
(2024),4 the primary jurisdiction doctrine is too broad and wrongly
permits Texas courts to delegate judicial power to administrative
agencies. We need not revisit the contours of Texas’s primary
jurisdiction doctrine post-Loper Bright, however, because we discern no
basis for the trial court’s conclusion that the Board has concurrent
jurisdiction to make the judicial determination the parties put to the
trial court. Without a clear grant of concurrent jurisdiction authorizing
the agency to adjudicate the dispute, the primary jurisdiction doctrine

4 In Loper Bright, the Supreme Court overruled Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which had
obliged courts to defer to administrative agencies on the proper interpretation
of certain statutes. Loper Bright, 603 U.S. at 412–13.

7
simply does not come into play, and a court may not confer adjudicative
power on the agency as the trial court did here.5
Whatever benefits may be derived from an administrative
agency’s input, a court seeking to refer a judicial determination to that
agency under the primary jurisdiction doctrine must first confirm the
basis for the agency’s concurrent jurisdiction over the question in
dispute. If the agency “is powerless to grant the relief sought and has
no authority to make incidental findings which are essential to the
granting of the relief,” the doctrine does not apply and no referral may
be made. Foree v. Crown Cent. Petrol. Corp., 431 S.W.2d 312, 316 (Tex.
1968). Each of this Court’s primary-jurisdiction-doctrine cases involved
agencies to which our Legislature clearly afforded some authority over
the relevant question in dispute—either the power to issue findings
necessary to resolve the disputed question or the power to resolve the
dispute entirely.6

5 Another reason this case is not a suitable vehicle for the Court to
reconsider Texas’s primary jurisdiction doctrine is that it involves a referral to
a federal agency to determine the proper application of a federal statute. An
examination of whether Texas’s primary jurisdiction doctrine should be
narrowed is better left for a case in which a Texas court refers a dispute to a
Texas agency based on the Texas Legislature’s grant of concurrent jurisdiction.
6 See, e.g., Forest Oil, 518 S.W.3d at 429–30 (explaining that the Natural

Resources Code authorized the Railroad Commission to “make determinations
with respect to,” and remedy, contamination claims); In re Sw. Bell Tel. Co.,
226 S.W.3d 400, 403 (Tex. 2007) (noting that the Public Utility Commission
“retain[ed] authority to interpret and enforce the interconnection agreements”
in dispute); Butnaru, 84 S.W.3d at 208–09 (explaining that the Legislature
“specifically authorized the [Motor Vehicle] Board to resolve disputes” alleging
a violation of the Motor Vehicle Commission Code, which formed the basis of
the tort claim); Cash Am. Int’l, 35 S.W.3d at 16–18 (confirming that the

8
The applicability of the primary jurisdiction doctrine is a question
we review de novo. Subaru, 84 S.W.3d at 222. As explained below, none
of the statutes cited by the parties or the trial court clearly confer
authority on the Board to determine whether an entity qualifies as a
common carrier by railroad under FELA. The trial court thus abused
its discretion when it invoked the primary jurisdiction doctrine and
referred that question to the Board.
1. The Board’s enabling legislation does not clearly
authorize the Board to determine Rail Link’s
common-carrier status under FELA.
The natural starting point in locating an agency’s authority to
resolve a dispute is the legislation that creates and empowers it.
Congress first established the Board and gave it authority in ICCTA.
See Pub. L. No. 104-88, 109 Stat. 803 (1995) (codified at 49 U.S.C.
§§ 10101–16106).7 That statute gives the Board exclusive jurisdiction
over “(1) transportation by rail carriers, and the remedies provided in
this part with respect to rates, classifications, rules . . . , practices,
routes, services, and facilities of such carriers; and (2) the construction,
acquisition, operation, abandonment, or discontinuance of . . . tracks, or
facilities.” 49 U.S.C. § 10501(b). ICCTA has been described as granting
the Board “exclusive jurisdiction to regulate certain economic and
operational aspects of rail transportation,” Horton v. Kan. City S. Ry.

Consumer Credit Commissioner had authority to resolve disputes over lost
goods under the Pawnshop Act).
7 Congress later amended various portions of ICCTA and established

the Board as an independent agency, removing it from the U.S. Department of
Transportation’s ambit. See Surface Transportation Board Reauthorization
Act of 2015, Pub. L. No. 114-110, 129 Stat. 2228.

9
Co., 692 S.W.3d 112, 150 (Tex. 2024) (Busby, J., concurring), and
ensuring that the Board is the leading authority for laws that “directly
attempt to manage or govern a railroad’s decisions in the economic
realm,” Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 807 (5th Cir. 2011).8
Rail Link asserts that a determination of its common-carrier
status under FELA falls within this general grant of jurisdiction because
“the Board has jurisdiction over transportation by rail carrier,”
49 U.S.C. § 10501(a)(1), and the statute’s definition of “rail carrier”
incorporates the concept of a “common carrier,” see id. § 10102(5)
(defining “rail carrier” as “a person providing common carrier railroad
transportation for compensation”). In Rail Link’s view, the Board thus
has jurisdiction to adjudicate common-carrier status for all purposes.
We disagree. We cannot infer that the Board has power to determine
whether Rail Link is a common carrier for purposes of FELA merely
because the term “common carrier” also appears in a statute over which
the Board does exercise jurisdiction. See Subaru, 84 S.W.3d at 220
(“Courts will not imply additional authority to agencies, nor may
agencies create for themselves any excess powers.”). Such a power is not
“reasonably necessary to fulfill [the Board’s] express functions or
duties.” Pub. Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d 310, 316

8 That the Board’s jurisdiction does not encompass tort-liability
questions is demonstrated by the fact that, as one court observed, jurisdiction
over “railroad safety” belongs not to the Board but to a different agency—the
Federal Railroad Administration. Bos. & Me. Corp. v. Surface Transp. Bd.,
364 F.3d 318, 321 (D.C. Cir. 2004). We have also recognized that the Federal
Rail Safety Act “delegates rail-safety regulation to the federal Secretary of
Transportation, not to the Surface Transportation Board.” Horton, 692 S.W.3d
at 122.

10
(Tex. 2001). Cloaking the Board with adjudicatory jurisdiction over any
common-carrier determination regardless of context would
impermissibly permit it to “exercise what is effectively a new power . . .
on the theory that such a power is expedient for administrative
purposes.” Id.
Although Congress afforded the Board adjudicatory jurisdiction
over disputes involving railroad rates, the Board’s enabling statute does
not clearly establish that its jurisdiction includes the FELA dispute at
issue here. Throughout the statute, Congress specifically described the
types of adjudicatory disputes over which the Board may exercise
jurisdiction. For example, the Board is tasked with “determining
whether a rate established by a rail carrier is reasonable,” 49 U.S.C.
§ 10701(d)(2), and resolving complaints challenging the reasonableness
of a rail carrier’s rate, see id. § 10704. In doing so, the Board is expressly
authorized to determine whether that carrier has “market dominance,”
a defined term. Id. § 10707. The Board is also empowered to conduct
proceedings on applications to construct and operate (or abandon)
railroad lines, id. §§ 10901, 10903, and to require the sale of a railroad
line after making requisite findings, id. § 10907(b)(1).
The Board may also investigate—either on its own or in response
to a complaint—whether a “violation” of ICCTA has occurred. See id.
§§ 11701(a) (granting the Board authority to investigate and find “a
violation of this part”), 11702 (granting the Board authority to file a civil
action to enjoin licensing violations, enforce limitations on entity
combinations, and enforce its own orders), 11704 (providing remedies
for a “violation of this part”). And the statute authorizes the Board to

11
prescribe regulations and obtain information from rail carriers,
including by subpoena or deposition, to carry out ICCTA’s provisions.
See id. § 1321. Absent from these express grants of adjudicative
authority is any clear indication that Congress intended to provide the
Board with sweeping power to determine common-carrier status for all
purposes or, more precisely, under FELA.
Rail Link points to examples of the Board’s having previously
determined whether a railroad is a common carrier. Rail Link contends
these examples establish the Board’s jurisdiction to determine Rail
Link’s common-carrier status in this case. But in each example Rail
Link cites, the Board made its determination in the context of a dispute
the Board is expressly authorized by statute to resolve. See, e.g.,
Louisville & Jefferson Cnty. Riverport Auth., No. FD 36463, 2021 WL
4940260, at *4 (S.T.B. Oct. 22, 2021) (determining that an entity was
not operating as a common carrier and thus rejecting a complaint that
the entity was illegally operating without the Board’s authorization). 9
And even the cited examples in which a court referred the
common-carrier question (as opposed to proceedings that originated

9 See also Rail-Term Corp., No. FD 35582, 2014 WL 7405858, at *1–2

(S.T.B. Dec. 30, 2014) (explaining a previous order finding an entity was a rail
carrier under [ICCTA] § 10102(5) for purposes of determining whether the
entity was an “employer” under the Railroad Retirement Act, which defines
“employer” with reference to the Board’s jurisdiction); Honey Creek R.R., Inc.,
No. AB-865X, 2008 WL 2271465, at *7 (S.T.B. June 4, 2008) (concluding that
an entity “became a rail carrier and assumed common carrier obligations,”
making its abandonment of a rail line subject to the Board’s authority);
Greenville Cnty. Econ. Dev. Corp., No. FD 34487, 2005 WL 1767438, at *3
(S.T.B. July 27, 2005) (concluding that the Board “has primary jurisdiction to
determine whether a railroad’s common carrier obligation has been met”
pursuant to [ICCTA] § 10501(b)(2)).

12
with the Board) involved disputes clearly falling within the Board’s
jurisdiction. See Chlorine Inst., Inc. v. Soo Line R.R., 792 F.3d 903, 909
n.5, 910–13 (8th Cir. 2015) (affirming a referral to the Board to
determine whether a railroad’s requirement for transporting hazardous
materials satisfied its common-carrier obligations under [ICCTA]
§ 11101 when “[n]either party dispute[d] both the district court and the
STB have jurisdiction to address Appellants’ § 11101 claim”); Pejepscot
Indus. Park, Inc. v. Me. Cent. R.R. Co., 215 F.3d 195, 205–06 (1st Cir.
2000) (concluding that referral was proper for the question of whether
certain actions violated ICCTA when a claim for that violation could be
adjudicated by a district court or the Board); Finch Paper LLC, No. FD
35981, 2016 WL 547716, at *1 (S.T.B. Feb. 11, 2016) (accepting a referral
from the district court to issue a declaratory order regarding whether
“certain practices . . . are unreasonable practices in violation of [ICCTA]
§§ 10702 and 10746”). At best, these proceedings establish that the
Board may have authority to make a finding on common-carrier status
when necessary to resolve a dispute under ICCTA or otherwise within
the Board’s jurisdiction. But we discern no clear grant of jurisdiction to
adjudicate common-carrier status generally or FELA claims in
particular.
Rail Link also cites cases in which courts deciding FELA cases
have considered the Board’s views of whether an entity is a common
carrier. See Gomez v. H&M Int’l Transp., Inc., No. 17-CV-231, 2021 WL
236596, at *4 n.5, *7 n.9 (D.N.J. Jan. 25, 2021) (noting that an entity’s
status as a rail carrier under ICCTA may be relevant to whether it is a
common carrier by railroad for purposes of FELA but declining to defer

13
to the Board’s interpretation of ICCTA, which is “a different statute from
FELA”); Johnson v. Decatur Junction Ry., Co., No. 11-CV-1400, 2014
WL 1282285, at *2 (C.D. Ill. Mar. 28, 2014) (using the absence of the
Board’s authorization to operate a railroad as one piece of evidence in
determining an entity’s common-carrier status under FELA); see also
Lone Star Steel Co. v. McGee, 380 F.2d 640, 642, 648–49 (5th Cir. 1967)
(noting that the Interstate Commerce Commission, the Board’s
predecessor, did not assume jurisdiction over an entity’s railroad
equipment but concluding that the entity was, in fact, a common carrier
under FELA). But the fact that courts determining common-carrier
status under FELA have considered the Board’s determinations
regarding common-carrier status under ICCTA does not equate to a
clear grant of jurisdiction to the Board over FELA disputes.
This is not to say that the Board’s opinion on whether Rail Link
is a common carrier under ICCTA is useless. The trial court could, of
course, consider the Board’s views regarding Rail Link’s common-carrier
status under ICCTA as a persuasive indicator of whether Rail Link is a
common carrier under FELA. But the trial court erred when it assumed
the Board’s statutory powers authorized the court to refer to it the
common-carrier determination under FELA. See Foree, 431 S.W.2d at
317 (rejecting a claim that a statute conferred authority on an agency to
act “in a vacuum or as a mere agent of a trial court”).
2. FELA does not clearly place the common-carrier
question within the Board’s jurisdiction.
FELA itself likewise includes no explicit grant of jurisdiction to
the Board to determine when and whether that statute applies. First
enacted in 1908, FELA is “focused primarily upon injuries and death

14
resulting from accidents on interstate railroads.” Urie v. Thompson, 337
U.S. 163, 181 (1949). It does not afford any power to the Board, much
less the power to determine which entities fall within the statute’s
reach. FELA imposes liability on a “common carrier by railroad” when
an employee’s injuries result from the carrier’s negligence. 45 U.S.C.
§ 51. In short, FELA “imposes on railroads the duty to use reasonable
care in providing their employees a safe workplace.” Union Pac. R.R.
Co. v. Nami, 498 S.W.3d 890, 894 (Tex. 2016).
FELA does not define the term “common carrier,” leaving the
contours of its scope to be determined by the common law. See Norfolk
S. Ry. Co. v. Sorrell, 549 U.S. 158, 165–66 (2007) (“Absent express
language to the contrary, the elements of a FELA claim are determined
by reference to the common law.”); Nami, 498 S.W.3d at 895 (“In
applying FELA, we look to the common law, not of Texas or any
particular jurisdiction, but in general.”). The hands-off approach to
defining the statute’s reach is consistent with the rest of the statute,
which departs from common-law rules “[o]nly to the extent of [FELA’s]
explicit statutory alterations.” Consol. Rail Corp. v. Gottshall, 512 U.S.
532, 544 (1994). And courts, including our country’s highest, have
comfortably determined whether a defendant is a “common carrier”
under FELA for decades.10

10 See, e.g., Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187 (1920)
(defining “common carrier by railroad” as used in FELA to mean “one who
operates a railroad as a means of carrying for the public”); Lone Star Steel, 380
F.2d at 647 (enumerating “various considerations [that] are of prime
importance in determining whether a particular entity is a common carrier”);
Flores v. Coffield Warehouse Co., 683 S.W.2d 31, 33 (Tex. App.—Texarkana

15
In other statutes, Congress has included language that clearly
authorizes the Board to make certain relevant determinations with
respect to those statutes. For example, the Railroad Unemployment
Insurance Act expressly authorizes the Board, on an interested party’s
request, “to determine after hearing” whether that statute applies. 45
U.S.C. § 351(a). We must give meaning to the absence of any such grant
of authority in FELA. See Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d
492, 497 (Tex. 2013) (“When the Legislature expresses its intent
regarding a subject in one setting, but, as here, remains silent on that
subject in another, we generally abide by the rule that such silence is
intentional.”); see also In re Commitment of Bluitt, 605 S.W.3d 199, 203
(Tex. 2020) (“When interpreting statutes, we presume the Legislature
chose the statute’s language with care, purposefully choosing each word,
while purposefully omitting words not chosen.”). FELA contains no
clear grant of adjudicative power to the Board that could support the
trial court’s referral order in this case.
3. The statute authorizing the Board to issue declaratory
orders does not clearly establish the necessary
jurisdiction.
Finally, Rail Link points to the Board’s statutory authority to
issue declaratory orders as a basis for its jurisdiction over this dispute.
The federal Administrative Procedure Act (APA) provides that an
administrative agency, “in its sound discretion, may issue a declaratory
order to terminate a controversy or remove uncertainty.” 5 U.S.C.

1984, no writ) (concluding that the defendant was “not a common carrier by
railroad” and thus not liable under FELA).

16
§ 554(e). Agencies use this power in exercising their statutory
mandates, issuing orders to: “(1) interpret the agency’s governing
statute or own regulations; (2) define terms of art; (3) clarify whether a
matter falls within federal regulatory authority; or (4) address questions
of preemption.” Emily S. Bremer, The Agency Declaratory Judgment, 78
OHIO ST. L.J. 1169, 1204 (2017); see also Burnele V. Powell, Sinners,
Supplicants, and Samaritans: Agency Advice Giving in Relation to
Section 554(e) of the Administrative Procedure Act, 63 N.C. L. REV. 339,
346 (1985) (“This provision was intended to allow an agency to assess
the impact of its statutes and regulations in light of the particularized
circumstances of an affected citizen.”).
But an agency’s authority to issue declaratory orders is not—and
cannot be—limitless. Section 554(e) applies only in cases of
“adjudication required by statute to be determined on the record after
opportunity for an agency hearing.” 5 U.S.C. § 554(a) (emphasis added).
In other words, the authority to issue a declaratory order does not itself
create jurisdiction; the agency must have some underlying adjudicative
jurisdiction to declare something in the first instance. See Red Lion
Broad. Co. v. Fed. Commc’ns Comm’n, 395 U.S. 367, 372 n.3 (1969)
(“Since the FCC could have adjudicated these questions it could, under
the [APA], have issued a declaratory order in the course of its
adjudication which would have been subject to judicial review.”); see also
Ill. Terminal R.R. Co. v. Interstate Com. Comm’n, 671 F.2d 1214, 1216
(8th Cir. 1982) (“Of course, § 554(e) does not allow an agency to issue a
declaratory order on any subject matter; there must be some underlying
authority.”). Indeed, the APA itself forbids an agency from issuing any

17
order unless it is “within [the] jurisdiction delegated to the agency and
as authorized by law.” 5 U.S.C. § 558(b).
The Board cited its general statutory powers when it accepted the
trial court’s referral. See 49 U.S.C. § 1321. But as we explain above, the
Board’s powers are tied to its statutory mandate to carry out the
provisions of ICCTA. See id. § 1321(a) (“Enumeration of a power of the
Board in this chapter or subtitle IV does not exclude another power the
Board may have in carrying out this chapter or subtitle IV [i.e., ICCTA].”
(emphasis added)). There is no clear underlying authority supporting
the Board’s use of a declaratory order to make a judicial determination
whether Rail Link is a common carrier subject to FELA liability.
* * *
“Courts are not free to outsource to [administrative agencies] the
authority to adjudicate common-law questions and factual disputes
properly decided by judges and juries.” CenterPoint Energy, 629 S.W.3d
at 164. Before referring the threshold question of FELA’s application to
an administrative agency under the primary jurisdiction doctrine, the
trial court first needed to determine that the agency had concurrent
jurisdiction to make that finding. But Rail Link has not shown, and we
have not found, any statute clearly authorizing the Board to resolve that
question. The trial court’s referral of the common-carrier determination
to the Board was thus an abuse of discretion. See In re UMTH Gen.
Servs., L.P., 725 S.W.3d 424, 432 n.45 (Tex. 2025) (“Trial courts have ‘no
“discretion” in determining what the law is or applying the law to the

18
facts.’” (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135
(Tex. 2004))).11
B. Reed lacks an adequate remedy by appeal.
To be entitled to relief, Reed must also show that he has no
adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992). “We determine whether an adequate appellate remedy
exists by weighing the benefits of mandamus review against the
detriments.” In re Acad., Ltd., 625 S.W.3d 19, 32 (Tex. 2021). The risk
of significant waste of economic and judicial resources and the potential
harm to the separation of powers if the referral order stands both lead
us to conclude that Reed has made the necessary showing here.
Although “[c]ourts do not issue relief merely to avoid some
‘expense or delay’ associated with appellate relief,” we are inclined to
grant relief “when an appeal would amount to an ‘irreversible waste of
judicial and public resources.’” UMTH Gen. Servs., 725 S.W.3d at 432
(quoting Prudential, 148 S.W.3d at 137). As with a trial court’s
erroneous exercise of jurisdiction, an agency’s unlawful exercise of
jurisdiction over a dispute “necessarily costs ‘private parties and the
public the time and money utterly wasted enduring eventual reversal of
improperly conducted proceedings.’” In re J.B. Hunt Transp., Inc., 492

11 Even if the Court were to assume the Board has concurrent
jurisdiction to decide whether Rail Link is a common carrier under FELA, the
referral would be improper because it fails the first prong of the two-part test
for determining whether referral under the primary jurisdiction doctrine is
proper. See Subaru, 84 S.W.3d at 221. Federal and Texas courts regularly
decide—and have for decades—whether an entity meets FELA’s definition of
“common carrier.” See, e.g., Wells Fargo, 254 U.S. at 187; Lone Star Steel, 380
F.2d at 647; Flores, 638 S.W.2d at 33. Rail Link has not demonstrated that the
Board has any particular expertise in adjudicating tort liability under FELA.

19
S.W.3d 287, 299 (Tex. 2016) (quoting Prudential, 148 S.W.3d at 136).
Baseless referrals harm the judicial system, “injecting inefficiency by
enabling forum-shopping, wasting judicial resources, delaying
adjudication on the merits, and skewing settlement dynamics.” Pinto
Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 437 (Tex. 2017)
(quoting In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010)).
Put differently, appeal “is no remedy at all for the irreversible waste of
judicial and public resources that would be required here if mandamus
does not issue.” In re Masonite Corp., 997 S.W.2d 194, 198 (Tex. 1999).
We are also cognizant that the referral order threatens the
separation of powers. “[W]e have granted mandamus relief to halt trial
court proceedings that run counter to an administrative agency’s
exclusive jurisdiction,” In re Oncor Elec. Delivery Co., 630 S.W.3d 40, 44
(Tex. 2021), reasoning that our inaction would “disrupt the orderly
processes of government,” Sw. Bell Tel., 235 S.W.3d at 624, and amount
to “judicial appropriation of state agency authority,” Entergy, 142
S.W.3d at 321. This logic cuts the other way too. See Westheimer Indep.
Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978) (noting that
court intervention is permissible “when an agency is exercising
authority beyond its statutorily conferred powers”); see also City of
Sherman v. Pub. Util. Comm’n, 643 S.W.2d 681, 686 (Tex. 1983)
(affirming an injunction to prevent an agency from acting beyond its
authority). For all these reasons, we conclude that Reed lacks an
adequate remedy by appeal.

20
III. Conclusion
The trial court clearly abused its discretion when it invoked the
primary jurisdiction doctrine to refer the issue of Rail Link’s
common-carrier status under FELA to the Surface Transportation
Board without first confirming that a clear statutory grant of authority
permits the Board to resolve the question. We conditionally grant
mandamus relief and direct the trial court to vacate its referral order.
We are confident the trial court will comply, and the writ will issue only
if it does not.

Rebeca A. Huddle
Justice

OPINION DELIVERED: June 19, 2026

21

Supreme Court of Texas
══════════
No. 25-0149
══════════

In re Demaree Reed,
Relator

═══════════════════════════════════════
On Petition for Writ of Mandamus
═══════════════════════════════════════

JUSTICE SULLIVAN, joined by Justice Busby and Justice Hawkins,
concurring.

As the Court correctly holds, Congress hasn’t empowered the U.S.
Surface Transportation Board to determine Rail Link, Inc.’s status as a
common carrier under the Federal Employers’ Liability Act. Ante at 9–
19. But even if Congress had done so, I still wouldn’t refer this case to
the STB. We’ve never used the primary-jurisdiction doctrine to refer a
case to a federal agency, only to state agencies. I wouldn’t start now.
The U.S. Supreme Court invented the primary-jurisdiction
doctrine as “one of those creative judicial labors whereby modern
administrative law is being developed as part of our traditional system
of law.” Far E. Conf. v. United States, 342 U.S. 570, 575 (1952). As with
other judicially created doctrines, “[n]o fixed formula exists for applying
the doctrine of primary jurisdiction.” United States v. W. Pac. R.R., 352
U.S. 59, 64 (1956). Instead, a federal court will ask “whether
preliminary reference of issues to the agency will promote that proper
working relationship between court and agency that the primary
jurisdiction doctrine seeks to facilitate.” Pharm. Rsch. & Mfrs. of Am. v.
Walsh, 538 U.S. 644, 673 (2003) (Breyer, J., concurring in part). If the
agency-expertise vibes check out, then the court will “stay[] further
proceedings so as to give the parties reasonable opportunity to seek an
administrative ruling.” Reiter v. Cooper, 507 U.S. 258, 268 (1993). The
primary-jurisdiction doctrine thus “allows a court to refer an issue to an
agency that knows more about the issue, even if the agency hasn’t been
given exclusive jurisdiction to resolve it.” Arsberry v. Illinois, 244 F.3d
558, 563 (7th Cir. 2001) (Posner, J.).
We’ve borrowed this judicial innovation from the federal courts.
See, e.g., Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 18–19 (Tex. 2000)
(citing W. Pac. R.R., 352 U.S. at 63–65); Gregg v. Delhi-Taylor Oil Corp.,
344 S.W.2d 411, 414 (Tex. 1961) (citing Kavanaugh v. Underwriters Life
Ins., 231 S.W.2d 753, 755–56 (Tex. Civ. App.—Waco 1950, writ ref’d)
(citing Tex. & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426 (1907))).
In Texas, therefore, “[t]he judicially created primary jurisdiction
doctrine operates to allocate power between courts and agencies when
both have authority to make initial determinations in a dispute.”
Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221
(Tex. 2002) (citing Foree v. Crown Cent. Petrol. Corp., 431 S.W.2d 312,
316 (Tex. 1968)). In such cases, the doctrine “requires trial courts to
allow an administrative agency to initially decide an issue when: (1) an
agency is typically staffed with experts trained in handling the complex
problems in the agency’s purview; and (2) great benefit is derived from

2
an agency’s uniformly interpreting its laws, rules, and regulations,
whereas courts and juries may reach different results under similar fact
situations.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 208 (Tex. 2002).
Unless, of course, the plaintiff’s claims are “inherently judicial in
nature”—whatever that means. Forest Oil Corp. v. El Rucio Land &
Cattle Co., 518 S.W.3d 422, 430 (Tex. 2017) (quoting Amarillo Oil Co. v.
Energy-Agri Prods., Inc., 794 S.W.2d 20, 26 (Tex. 1990)).
I’d be open to revisiting Texas’s primary-jurisdiction doctrine in
an appropriate case, because it doesn’t “appear to be rooted in positive
law, like a statute or a constitution.” Smith v. Hi-Tech Pharms., Inc.,
891 S.E.2d 923, 926 (Ga. 2023) (Pinson, J., concurring in the denial of
certiorari). And I certainly wouldn’t extend the primary-jurisdiction
doctrine beyond the cases in which this Court has applied it, all of which
referred issues to state agencies rather than federal agencies. See, e.g.,
In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403–04 (Tex. 2007) (Public
Utility Commission of Texas); Butnaru, 84 S.W.3d at 208–09 (Texas
Motor Vehicle Board); Kavanaugh, 231 S.W.2d at 756 (Texas Board of
Insurance Commissioners). “The first rule of holes, according to an old
saying, is to stop digging.” Lightspeed Media Corp. v. Smith, 761 F.3d
699, 702 (7th Cir. 2014).

James P. Sullivan
Justice

OPINION FILED: June 19, 2026

3