# In Re Demaree Reed

> Texas Supreme Court · June 19, 2026

URL: https://www.frixlaw.com/law-library/cases/11345129

## Case

- **Court:** Texas Supreme Court
- **Decided:** June 19, 2026
- **Precedential status:** Published
- **Opinion:** Concurrence by Young
- **Judges:** Huddle; Young; Hawkins; Sullivan; Busby; Hawkins
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11345129

## How later opinions describe it (automated extraction)

- 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
- explaining that the doctrine’s purpose includes “ensuring that administrative agencies decide, at least initially, questions that” implicate agency expertise
- 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”
- 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”
- 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

## Opinion text

Supreme Court of Texas
══════════
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

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).

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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

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

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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

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11345129. Public record. Not legal advice.