Li Li v. TGS-NOPEC Geophysical Company

Opinion issued January 15, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00087-CV
———————————
LI LI, Appellant
V.
TGS-NOPEC GEOPHYSICAL COMPANY, Appellee

On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2019-84389

CONCURRING OPINION

The trial court did not have to submit the requested instructions about pretext.

But did it have the discretion to do so? No. That would have been error. Pretext

instructions are hopelessly problematic because they single out one side’s take on

key testimony and prod the jury to find for that side. They put a judicial thumb on
the scale, when the critical task of weighing evidence belongs exclusively to the jury.

So lest anyone come away with the impression that the trial court could have gone

either way, the time has come to dispel that notion forever.

Witnesses do lie and cover up wrongdoing, and when they do, lawyers can

point it out during jury argument. Lawyers can argue with passion and make hay

about which witnesses looked evasive or squirmed the most when impeached. But

that battle must take place on a level playing field. Texas trial judges get a front row

seat but cannot join in the fray.

To be clear, I join the holding that the trial court did not commit reversible

error in declining to give the instructions. But in light of the legal issue’s

significance, I would go further by holding that a trial court should never give such

instructions. The issue matters to Texas law, will inevitably recur in future cases,

and deserves an answer now.

I.

This issue matters to the state’s jurisprudence for several reasons. First,

virtually every worker depends on enforceable protections against illegal treatment

on the job. Employers should care, too, because every time the law tilts the playing

field in favor of liability, the employer loses a bit of latitude to make decisions. With

employment litigation as common and important as it is, getting the charge right in

this area matters to countless employees and employers.

2
Second, there is substantial room for disagreement about the issue. This area

has never generated a national consensus. One Fifth Circuit panel has found a

plaintiff entitled to the instruction. See Ratliff v. City of Gainesville, 256 F.3d 355,

359–61 (5th Cir. 2001) (Stewart, J.). A later panel disagreed. See Kanida v. Gulf

Coast Med. Pers. LP, 363 F.3d 568, 573–77 (5th Cir. 2004) (Garza, J.) (disagreeing

with rationale of Ratliff but acknowledging that it is binding precedent); id. at 583

(Benavides, J., concurring) (“I do not join the majority opinion’s criticism of Ratliff

or its call for en banc review of that decision.”). Meanwhile, the Fifth Circuit pattern

jury instructions support a pretext instruction. See FIFTH CIRCUIT PATTERN JURY

INSTRUCTIONS (Civil) No. 11.5 (2020) (Title VII retaliation); id. No. 11.21 (FMLA

retaliation). Unlike the Fifth Circuit, however, the Seventh Circuit disfavors these

instructions:

Gehring also wanted the judge to instruct the jury about one permissible
inference: that if it did not believe the employer’s explanation for its
decisions, it may infer that the employer is trying to cover up age
discrimination. This is a correct statement of the law, but a judge need
not deliver instructions describing all valid legal principles. Especially
not when the principle in question describes a permissible, but not an
obligatory, inference. Many an inference is permissible. Rather than
describing each, the judge may and usually should leave the subject to
the argument of counsel. Gehring’s lawyer asked the jury to draw this
inference; neither judge nor defense counsel so much as hinted that any
legal obstacle stood in the way. Instructions on the topic were
unnecessary.

Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir. 1994) (Easterbrook, J.) (citations

omitted); see Murphy v. Caterpillar Inc., 140 F.4th 900, 912 n.2 (7th Cir. 2025).
3
Other circuits have split over the issue.1 It is unnecessary to wade further into

federal law, because the federal approach to the charge looks nothing like the

approach taken in Texas.

But Texas law has not exactly come to a consensus, either. The Eastland

Court of Appeals says giving the instruction is error, while the El Paso Court of

Appeals says the opposite. See Baron Aviation Servs., Inc. v. Kitchen, 679 S.W.3d

330, 346–52 (Tex. App.—Eastland 2023, pet. denied); Tex. Dep’t of Transp. v.

Flores, 576 S.W.3d 782, 796–98 (Tex. App.—El Paso 2019, pet. denied).

With no Texas Supreme Court holding directly on point, the Texas Pattern

Jury Charges (PJC) has trended toward the pro-instruction position.2 This trend in

1
See Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1241 (10th Cir. 2002)
(instruction is required); Moore v. Robertson Fire Prot. Dist., 249 F.3d 786, 789–91 (8th
Cir. 2001) (not required); Fite v. Digit. Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000) (not
required); see also William J. Vollmer, Note, Pretext in Employment Discrimination
Litigation: Mandatory Instructions for Permissible Inferences?, 61 Wash. & Lee L. Rev.
407, 408, 411, 417–29 (2004).

2
For example, take retaliation under the Whistleblower Act. The 2016 version of PJC 107.4
asked a question about liability, with a simple definition of good faith. Comm. on Pattern
Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer,
Insurance & Employment, PJC 107.4 (2016). But the 2018 version of PJC 107.4 added the
pretext instruction: “If you do not believe the reason[s] Don Davis has given for
[terminating, suspending or (describe other discriminatory action)] Paul Payne, you may,
but are not required to, infer . . . .” Id. PJC 107.4 (2018). The 2018 version also added
such an instruction for unlawful employment practices (PJC 107.6) and retaliation (PJC
107.9), with commentary mentioning the Fifth Circuit’s decision in Ratliff as authority. Id.
PJC 107.6 & cmt., 107.9 & cmt. (2018). The 2020 version added such an instruction for
ADA “regarded-as claims” (PJC 107.11B). Id. PJC 107.11B (2020). The 2024 version
went further down this road by adding such an instruction for workers’ compensation
retaliation (PJC 107.5), partly on the authority of the El Paso court’s decision in Flores. Id.
PJC 107.5 & cmt. (2024).
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PJC language strikes me as misguided for reasons to be discussed in a moment, but

whatever one’s view about that, the issue’s importance should be apparent.

II.

As for the merits, it will not take long to show why the pretext instruction has

no place in Texas. The instruction tramples on the jury’s exclusive right to decide

disputed issues of fact. It basically tells the jury, “Pay special attention to that one

key witness, who might well be lying; and if you perceive a lie, that will be sufficient

evidence to let you find the defendant liable.”

In English courtrooms of the eighteenth century, judges had the power to

comment on the weight of the evidence.3 But in the United States, the practice of

commenting had already started decaying as Texas law began to develop.4 Texas

banned judicial commenting from early on,5 and the courts took the ban seriously.

3
See, e.g., Ronald J. Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified
Constitutional Approach to Evidentiary Devices, 94 Harv. L. Rev. 321, 330 (1980) (“The
power of judges in the United States to comment on the weight of the evidence is a direct
descendant of English law, under which the judge has long been granted extensive power
to express his opinion on the evidence.”) (footnotes omitted).

4
See Douglas G. Smith, The Historical and Constitutional Contexts of Jury Reform, 25
Hofstra L. Rev. 377, 442–43 (1996) (“The practice was eliminated by constitutional
provision, statute, and judicial decision largely during the period spanning 1835 to 1860.
Therefore, although in early American jury trials it was not uncommon for the judge to
comment on the evidence and the credibility of the witnesses, this practice fell into disuse
toward the end of the nineteenth century.”) (footnotes omitted).

5
“As early as 1853, the Legislature, in pursuance of this policy, enacted a law, that is still in
force, which indicates a radical departure from the mode of proceeding in trials, as
practiced in the courts of England and of many if not most of the American States, wherein
the common law prevails. It is as follows: The judge shall not in any case, civil or criminal,
5
In Willis v. Whitsitt, an instruction told jurors that they could “consider the interest

which such witnesses have in the matter in controversy.” 67 Tex. 673, 4 S.W. 253,

255 (1887). That instruction went too far: “Such a charge is virtually upon the

weight of evidence, tending to make the jury believe that, in the opinion of the judge,

the testimony of a particular witness is not entitled to much weight in making up

their verdict. Such a charge is inconsistent with the freedom allowed to the jury in

passing upon the weight of testimony and the credibility of witnesses.” Id. at 256.

In Davidson v. Wallingford, the charge singled out a witness by name,

prompting the supreme court to find error:

We are of opinion that the court also erred in singling out Mrs. Bickford
by name, and charging the jury that they were the judges of her
credibility and the weight to be given to her testimony, although the
charge was accompanied by the instruction that they were also the
judges of the credibility of all the other witnesses. The court should
simply have charged that the jury were the judges of the credibility of
the witnesses and the weight of the evidence. The effect of the
instruction was to lead the jury to believe that there was more question
as to the credibility of the witness who was named than as to that of the
other witnesses.

88 Tex. 619, 32 S.W. 1030, 1033 (1895).

The statutory ban on commenting on the weight of the evidence carried

forward into the twentieth century, see Joy v. Craig, 81 S.W.2d 261, 263 (Tex. Civ.

App.—Amarillo 1935, no writ), until it finally rolled into the 1941 rules as Texas

charge or comment on the weight of evidence. . . .” Tex. & Pac. Ry. Co. v. Murphy, 46
Tex. 356, 367 (1876) (quotation omitted).
6
Rule of Civil Procedure 277, where it remains to this day. See TEX. R. CIV. P. 277

(“The court shall not in its charge comment directly on the weight of the

evidence . . . .”).

This ban on judicial comments underpins our modern doctrine against tilting

or nudging: “An impermissible comment on the evidence occurs when a jury

instruction assumes the truth of a controverted material fact, or ‘tilts’ or ‘nudges’ the

jury in one direction.” Daven Corp. v. TARH E&P Holdings, L.P., 441 S.W.3d 770,

775 (Tex. App.—San Antonio 2014, pet. denied); see Halmos v. Bombardier

Aerospace Corp., 314 S.W.3d 606, 617 (Tex. App.—Dallas 2010, no pet.).

It also underpins our doctrine against surplusage: “The jury need not and

should not be burdened with surplus instructions.” Acord v. Gen. Motors Corp., 669

S.W.2d 111, 116 (Tex. 1984), superseded by statute on other grounds as stated in

Emerson Elec. Co. v. Johnson, 627 S.W.3d 197, 208 (Tex. 2021). Surplusage does

not get any more appropriate merely because it may state the law correctly. Lemos

v. Montez, 680 S.W.2d 798, 801 (Tex. 1984); see GJP, Inc. v. Ghosh, 251 S.W.3d

854, 887 (Tex. App.—Austin 2008, no pet.) (“The trial court’s charge need not and

should not burden the jury with surplus instructions, even if the additional

instructions are correct statements of the law.”).

All these flaws taint the pretext instruction. The instruction tilts, it nudges, it

adds surplusage, and it comments on the weight of the evidence. It needs to go.

7
Texas has superb employment litigators on both sides of the docket. Let them duke

it out at trial, and let the winner get the benefit of all the reasonable inferences. That,

at any rate, is my view about how our system works unless and until the supreme

court holds otherwise.

Conclusion

A century ago, the Texas system had a certification device, where an

intermediate court could send a legal question up to the supreme court. With that

device no longer available, we have the obligation to decide the case first. I join the

holding that the judgment should be affirmed. But rather than leaving anyone with

the impression that trial judges have the discretion—ever—to give a pretext

instruction, I would call the question about the pretext instruction and tell trial judges

not to give it unless they want to try the case twice.

David Gunn
Justice

Panel consists of Justices Rivas-Molloy, Gunn, and Caughey.

Justice Gunn, concurring.

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