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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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

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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

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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

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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

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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).

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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

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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

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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

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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

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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

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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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