In Re Demaree Reed

Supreme Court of Texas

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No. 25-0149

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In re Demaree Reed,

Relator

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On Petition for Writ of Mandamus

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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).

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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”).

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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.

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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.

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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.

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(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

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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)).

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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).

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§ 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

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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.

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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.

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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

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