The opinion
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United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 25-20524 FILED
____________ August 4, 2026
Lyle W. Cayce
Geoffrey Polk, Clerk
Plaintiff—Appellant,
versus
Amanda Crawford, In her Official Capacity as the Texas Insurance
Commissioner,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:25-CV-2652
______________________________
Before Willett, Engelhardt, and Douglas, Circuit Judges.
Don R. Willett, Circuit Judge:
Texas will license an escrow officer who lives in Aztec, New
Mexico—nearly 280 miles from the Texas border. It will not license one who
lives in Elkhart, Kansas—barely forty miles. Why? New Mexico shares a
border with Texas and Kansas does not. Article IV requires more than
geographic happenstance.
Geoffrey Polk lives in Illinois. He is licensed to practice law in at least
forty jurisdictions, including Texas, and holds title-producer licenses in
twenty-four States. Texas concedes that he satisfies every requirement for an
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No. 25-20524
escrow-officer license but one: his home address. On that basis alone, the
Texas Department of Insurance denied his application.
Polk sued under Article IV’s Privileges and Immunities Clause and
the Fourteenth Amendment’s Equal Protection Clause, then sought a
preliminary injunction. The district court denied relief without deciding
whether the law was likely constitutional, reasoning that it would be
“precipitous to overturn a 60-year-old statute on a preliminary basis.”
But a preliminary injunction does not finally “overturn” a statute. It
temporarily restrains enforcement while the court decides whether the
statute may lawfully be enforced at all. Nor do constitutional defects cure
with age. Longevity is not legitimacy.
On this record, Polk is likely to prevail. Article IV protects the right
to pursue a common calling on equal terms. Once Polk showed that Texas
facially discriminates against citizens of nonadjacent States in access to such
a calling, Texas bore the burden of justifying the line it drew. It offered none.
Because Polk’s exclusion inflicts injuries that cannot be remedied by
damages, and because a narrow injunction serves the equities and the public
interest, we REVERSE and REMAND with instructions to ENTER a
preliminary injunction. 1
I. Background
Polk is a legal resident of Florida but currently lives in Illinois. He is
an attorney licensed in at least forty jurisdictions, Texas among them. On
April 1, 2025, he applied for a Texas escrow-officer license. The Department
denied his application the next day because he did not live “in the State of
Texas or any state next to Texas.” A follow-up letter repeated that he was
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1
We resolve the appeal on Article IV and do not reach the Equal Protection claim.
2
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“neither a resident of Texas, nor a resident of a state adjacent to this state,”
and therefore did “not qualify for an escrow officer license” under Texas
law. 2 The State does not dispute that Polk satisfies every other requirement.
Two months later, Polk filed this suit, alleging that the residency rule
violates the Privileges and Immunities Clause of Article IV and the Equal
Protection Clause of the Fourteenth Amendment. The State moved to dismiss
under Rule 12(b)(6) on August 8, 2025. 3 Polk responded four days later.
That same day, Polk moved for a preliminary injunction to “halt the
ongoing enforcement of unconstitutional residency requirements for Texas
Escrow Officer Licenses.” His supporting affidavit averred that the rule
(1) prevented him from serving his existing Texas-based clients,
(2) prevented prospective clients from hiring him, and (3) hindered his
“ability to expand and maintain relationships with national and regional
clients who require title and escrow services in multiple jurisdictions,
including Texas.”
At an October 28, 2025, hearing on both motions, the State offered no
evidence supporting the regional residency requirement. After argument, the
district court orally denied both Polk’s motion for a preliminary injunction
and the State’s motion to dismiss.
The court’s minute order gave three reasons for denying preliminary
relief. First, it “noted that it would be precipitous to overturn a 60-year-old
statute on a preliminary basis.” Second, it inferred little irreparable harm
given Polk’s failure to seek preliminary injunctions in similar suits elsewhere.
_____________________
2
See Tex. Ins. Code §§ 2652.051(c)(1), 2652.056(1).
3
See Fed. R. Civ. P. 12(b)(6).
3
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Third, it found the merits “unclear” because of the “present record and lack
of factual clarity.” Polk timely appealed. 4
II. Preliminary Injunction Factors
We review the denial of a preliminary injunction for abuse of
discretion. 5 A plaintiff “must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” 6 We review the district court’s legal
conclusions de novo and its factual findings for clear error. 7 An order
“grounded in erroneous legal principles” likewise gets de novo review. 8
A. Likelihood of Success on the Merits
Polk invokes Article IV’s Privileges and Immunities Clause and the
Fourteenth Amendment’s Equal Protection Clause. The State disputes both
and, at the threshold, contests standing. We begin there, then turn to
Article IV. Because likely success on that claim supports all the preliminary
relief Polk seeks, we do not reach equal protection.
1. Standing
We begin, as we must, with standing. 9 At the preliminary-injunction
stage, a “plaintiff must make a ‘clear showing’ that she is ‘likely’ to establish
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4
See 28 U.S.C. § 1292(a)(1) (authorizing appellate jurisdiction of appeals from
interlocutory orders denying injunctions).
5
Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 288 (5th Cir. 2012).
6
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
7
Opulent Life Church, 697 F.3d at 288.
8
Id.
9
Est. of Parker v. Miss. Dep’t of Pub. Safety, 140 F.4th 226, 235 (5th Cir. 2025).
4
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each element of standing.” 10 Those elements are injury in fact, traceability,
and redressability. 11 “At the pleading stage, general factual allegations of
injury resulting from the defendant’s conduct may suffice.” 12 Polk did more
here: he supplied a sworn affidavit describing the injury caused by the
challenged rule.
Polk identifies two concrete injuries. First, Texas denied him equal
access to a licensed market solely because he lives outside Texas and its
neighboring States. Second, he alleges resulting losses of clients,
transactions, revenue, goodwill, and competitive standing. Traceability and
redressability are straightforward: the Commissioner enforces the rule, and
an injunction would eliminate the only ground for denial the Department
identified.
The State meaningfully contests only injury. 13 It points to a provision
allowing a Texas-licensed attorney to perform certain defined “duties of an
escrow officer” without holding an escrow license. 14 Because Polk may close
transactions and sign checks through an IOLTA account, the State says, the
denial of a license causes no cognizable harm.
We disagree. Section 2652.003 permits attorneys to perform four
defined “duties of an escrow officer” 15—countersigning title insurance
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10
Murthy v. Missouri, 603 U.S. 43, 58 (2024) (quoting Winter, 555 U.S. at 22).
11
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
12
Id. at 561.
13
The State nominally frames this argument as one about traceability, but it is really
an argument about injury. Its premise is not that some third party caused Polk’s alleged
harm; it is that Polk suffers no harm because, as a licensed attorney, he may already perform
certain escrow-related functions without an escrow-officer license.
14
Tex. Ins. Code § 2652.003(a).
15
Id.
5
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forms, supervising the forms’ preparation and delivery, signing escrow
checks, and closing transactions 16—without a license. But it does not confer
the full legal status or market access of a licensed escrow officer. Without a
license, Polk cannot accept appointment from a title insurance agent, 17
employ licensed escrow officers under his own license, 18 or conduct business
in the name of a title insurance company or agent. 19 The State thus answers
a different question. Polk does not claim that Texas forbids him from every
escrow-related act; he claims that Texas denied him the licensed status and
opportunities it affords identically qualified residents of Texas and adjacent
States. In equal-treatment cases, the injury is “the denial of equal treatment
resulting from the imposition of the barrier, not the ultimate inability to
obtain the benefit.” 20 The same principle applies here: the barrier is an injury
in its own right. Polk also alleges financial harm, which separately establishes
an Article III injury. 21
2. Privileges and Immunities Clause
Article IV commands that “[t]he Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in the several States.” 22
This provision “was designed ‘to place the citizens of each State upon the
same footing with citizens of other States, so far as the advantages resulting
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16
Tex. Ins. Code § 2501.003(4).
17
Tex. Ins. Code § 2652.1511(a).
18
Tex. Ins. Code § 2652.003(b).
19
Tex. Ins. Code § 2652.003(c).
20
Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville,
508 U.S. 656, 666 (1993).
21
See Texas v. United States, 787 F.3d 733, 748 (5th Cir. 2015) (“It is well
established that a financial loss generally constitutes an injury.”).
22
U.S. Const. art. IV, § 2, cl. 1.
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from citizenship in those States are concerned.’” 23 For this analysis,
citizenship and residency are essentially interchangeable. 24
The inquiry is twofold. First, we ask whether the activity at issue is
“sufficiently basic to the livelihood of the Nation” to fall within the Clause. 25
If so, the restriction survives only if it is “closely related to the advancement
of a substantial state interest.” 26
a. Escrow Work Is a Protected Common Calling
“[T]he pursuit of a common calling is one of the most fundamental of
those privileges protected by the Clause.” 27 The Clause therefore sharply
limits “a State’s power to bias employment opportunities in favor of its own
residents.” 28 The Supreme Court has accordingly invalidated “state
discrimination against nonresidents seeking to ply their trade, practice their
occupation, or pursue a common calling within the State.” 29 The Clause has
been held to protect many different callings: lawyers, 30 merchants, 31
_____________________
23
Supreme Ct. of Va. v. Friedman, 487 U.S. 59, 64 (1988) (quoting Paul v. Virginia,
75 U.S. (8 Wall.) 168, 180 (1869)); see also U.S. Const. amend. XIV, § 1 (“All persons
born or naturalized in the United States and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.” (emphasis added)).
24
See Friedman, 487 U.S. at 64 (“While the Privileges and Immunities Clause cites
the term ‘Citizens,’ for analytic purposes citizenship and residency are essentially
interchangeable.”).
25
Id. (quoting United Bldg. & Constr. Trades Council of Camden Cnty. & Vicinity v.
Mayor of City of Camden, 465 U.S. 208, 221–22 (1984)) (internal quotation marks omitted).
26
Friedman, 487 U.S. at 65.
27
United Bldg. & Constr. Trades Council, 465 U.S. at 219.
28
Hicklin v. Orbeck, 437 U.S. 518, 525 (1978).
29
Id. at 524.
30
Supreme Ct. of N.H. v. Piper, 470 U.S. 274, 281 (1985).
31
Ward v. Maryland, 79 U.S. (12 Wall.) 418, 430 (1870).
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construction workers, 32 oil and gas pipeline workers, 33 and commercial
fishermen, 34 among others.
Neither the Supreme Court nor our court has addressed escrow
officers specifically. But the governing question is whether the occupation
“is sufficiently basic to the national economy to be deemed a privilege
protected by the Clause.” 35 Other circuits have accordingly extended Article
IV’s protection to insurance professionals. The First Circuit, for example,
held that insurance consulting falls within the Clause, expressing “no doubt
that insurance and occupations in the insurance industry are important to the
national economy,” 36 and the Ninth Circuit has reached the same conclusion
for insurance agents. 37
The State responds that escrow officers handle “purely intrastate
transactions involving real estate—an area of traditional state authority.” It
thus would limit Article IV to occupations with an “interstate impact.” That
argument mistakes Article IV for Article I. The Clause does not ask whether
each transaction constitutes interstate commerce. It asks whether a State
may close a common calling to citizens of other States. The question is not
whether the deed or dollars cross a border. It is whether the State erects one.
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32
United Bldg. & Constr. Trades Council, 465 U.S. at 221–22.
33
Hicklin, 437 U.S. at 524–25.
34
Mullaney v. Anderson, 342 U.S. 415, 417–18 (1952).
35
Friedman, 487 U.S. at 66. We note, however, that the Supreme Court has not
limited the Clause’s protections to economic rights. See Piper, 470 U.S. at 281 n.11 (“The
Court has never held that the Privileges and Immunities Clause protects only economic
interests.”).
36
Silver v. Garcia, 760 F.2d 33, 36 (1st Cir. 1985).
37
See Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 934 (9th Cir.
2008).
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Supreme Court precedent confirms the point. Supreme Court of New
Hampshire v. Piper protected the legal profession as a whole, not merely the
subset of legal matters crossing state lines, because it is “important to the
national economy.” 38 Hicklin v. Orbeck protected workers “connected with
the extraction of Alaska’s oil and gas,” 39 even though natural-resource
production is both local and a traditional field of state authority. 40 United
Building & Construction Trades Council protected construction workers
simply because “[t]he opportunity to seek employment . . . is sufficiently
basic to the livelihood of the Nation.” 41 And Toomer v. Witsell framed the
right as doing business in State B on terms of substantial equality with State
B’s citizens. 42 None of those decisions asked whether the particular lawsuit,
wellhead, jobsite, or catch crossed a state line. Each looked to the calling. On
the State’s theory, Texas could exclude nonresident surgeons, engineers, and
accountants whenever their work occurred wholly within Texas. 43 The State
neither defends that consequence nor supplies a limiting principle.
The historical understanding points the same way. While riding
circuit, Justice Washington in Corfield v. Coryell listed “the right to
_____________________
38
470 U.S. at 281.
39
437 U.S. at 530.
40
See Atl. Richfield Co. v. Christian, 590 U.S. 1, 36 (2020) (Gorsuch, J.,
concurring in part and dissenting in part) (noting that “the regulation of real property and
the protection of natural resources is a traditional and central responsibility of state
governments”).
41
465 U.S. at 221–22 (quoting Baldwin v. Mont. Fish & Game Comm’n, 436 U.S.
371, 388 (1978)) (cleaned up).
42
334 U.S. 385, 396 (1948).
43
We do not decide whether any particular occupation would be protected. The
point is that the State’s transaction-by-transaction theory supplies no limiting principle: it
would permit exclusion whenever a profession’s work is performed wholly within Texas.
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acquire and possess property of every kind” in his famous list of “those
privileges and immunities which are, in their nature, fundamental” and
“belong, of right, to the citizens of all free governments.” 44 The historical
understanding also included access to another State’s courts. 45 Neither right
depends on an interstate-commerce nexus. A Clause borrowed to help make
citizens of the several States “one people” would be a strange instrument if
it disappeared whenever the protected activity occurred inside one State.
Escrow work comfortably qualifies. The Supreme Court has described
lawyers as playing an important part in “commercial intercourse.” 46 Escrow
officers likewise serve as neutral depositories for the funds and documents in
real-estate transactions, 47 carrying out the parties’ written instructions for
closing. 48 And our court has recognized the enormous national significance
of the residential housing market. 49 It can hardly be doubted that real estate
transactions—and the professions that are indispensable to them, like escrow
officers—are an important part of our nation’s commercial intercourse. 50 A
profession integral to transferring and financing real property is not at
Article IV’s periphery. It is a common calling at the core.
_____________________
44
6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3,230).
45
See id. at 552 (explaining that the Clause protects a non-citizen’s right “to
institute and maintain actions of any kind in the courts of the state”); Canadian N. Ry. Co.
v. Eggen, 252 U.S. 553, 560 (1920) (citing Corfield).
46
Piper, 470 U.S. at 281 (quoting Goldfarb v. Va. State Bar, 421 U.S. 773, 788
(1975)).
47
TRW Title Ins. Co. v. Sec. Union Title Ins. Co., 153 F.3d 822, 824 (7th Cir. 1998).
48
Id.
49
See Groome Res. Ltd., L.L.C. v. Par. of Jefferson, 234 F.3d 192, 206 n.18 (5th Cir.
2000) (“The residential housing market in the United States is of tremendous economic
significance to the national economy.”).
50
Id.
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The State’s premise also lacks record support. The State asserts that
Texas closings are “purely intrastate,” but it offered no evidence to that
effect, and the district court found no such fact. Polk’s uncontested affidavit
suggests otherwise: his clients “require title and escrow services in multiple
jurisdictions,” and he derives “a substantial portion of [his] income from
providing escrow, settlement, and related title services nationwide.” A Texas
closing is “purely intrastate” only in the sense Piper rejected. 51 And even
taking the label at face value, it makes no difference. Piper protected the legal
profession for its role in the national economy, not because any particular
matter crossed a state line. 52 Escrow work likewise plays an integral role in
the national real-estate market. The State’s theory thus turns the Clause
upside down: it invokes the local character of a Texas closing to justify
excluding a citizen of another State from participating in it. That is the
interstate discrimination Article IV polices.
* * *
The Privileges and Immunities Clause protects nonresidents who seek
to ply a trade, pursue an occupation, or follow a common calling within
another State. 53 Escrow work “is sufficiently basic to the national economy
to be deemed a privilege protected by the Clause.” 54 Polk therefore satisfies
the first step.
b. Texas Has Not Shown a Substantial Justification
At the second step, Article IV permits unequal treatment only when
a substantial reason exists apart from the mere fact of out-of-state
_____________________
51
Piper, 470 U.S. at 281.
52
Id.
53
Hicklin, 437 U.S. at 524.
54
Friedman, 487 U.S. at 66.
11
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citizenship. 55 Put differently, the State must show that nonresidents are a
“peculiar source of the evil” the law addresses. 56
The State also must show a close fit between the asserted interest and
the discrimination. That inquiry considers whether the objective could be
advanced through less discriminatory alternatives. 57 The Clause permits
disparity in treatment only “where substantial reasons exist for the
discrimination and the degree of discrimination bears a close relation to such
reasons.” 58
Once facial discrimination against nonresidents in a protected calling
is shown, the burden of justification belongs to the State. 59 At the
preliminary-injunction stage, Texas therefore bore the burden of showing
both a substantial reason for the discrimination and a close fit between the
line drawn and that reason. It produced no evidence supporting either. It
candidly acknowledges that it “did not offer evidence supporting the State’s
interest” below and proposes to supply that evidence “in later discovery.”
The State may develop the merits record on remand. But a present failure of
proof cannot be answered with a promise of future proof. On the record
before us, the State’s conceded evidentiary silence matters.
_____________________
55
See Toomer, 334 U.S. at 396 (remarking that the Clause prohibits “discrimination
against citizens of other States where there is no substantial reason for the discrimination
beyond the mere fact that they are citizens of other States,” but “does not preclude
disparity of treatment in the many situations where there are perfectly valid independent
reasons for it”).
56
Id. at 398.
57
Friedman, 487 U.S. at 67.
58
Id.
59
Toomer, 334 U.S. at 398.
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The State nevertheless offers three rationales in its brief. It says the
requirement helps keep escrowed funds within Texas, facilitates
enforcement against escrow officers in a multi-state region, and deserves
deference because it has existed for nearly sixty years. On this record, none
fits the law Texas defends.
Start with the asserted interest in keeping funds in Texas. The
residency requirement is keyed to the officer’s home address even though the
asserted concern involves the location and security of escrowed funds. The
rule also authorizes residents of four other States—Oklahoma, Arkansas,
Louisiana, and New Mexico—to obtain licenses. If out-of-state residence
itself endangered Texas funds, the statute embraces four States’ worth of the
supposed danger. Nonadjacent residents are not a “peculiar source” of that
harm.
Enforcement fares no better. Every Texas licensee remains subject to
Texas’s appointment, bonding, disciplinary, and renewal requirements
regardless of domicile. If physical proximity were the concern, the
classification would track distance: Aztec, New Mexico lies about 280 miles
from the Texas line, while Elkhart, Kansas is just forty miles away. The
statute licenses Tulsa and refuses Wichita. It licenses Las Cruces and refuses
Memphis. If intergovernmental cooperation were the concern, the line might
track reciprocity, compacts, consent to service, or coordinated regulation. It
tracks none of them. Its sole criterion is a shared border.
The record contains no evidence that contiguity improves service of
process, access to records, detection of misconduct, or remediation of losses.
The State has not explained why a shared border makes a licensee easier to
reach. State boundaries identify jurisdictions, but they say little about
proximity, amenability to process, or regulatory accountability. On this
record, contiguity bears no demonstrated relationship to enforcement.
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Longevity adds nothing to the State’s justification. “A longstanding,
widespread practice is not immune from constitutional scrutiny.” 60 And the
adjacent-state exception now before us dates to 2009, not the 1960s. 61 The
State defends a sixty-year-old pedigree for a line that Texas drew seventeen
years ago. History may illuminate constitutional meaning in some settings,
but it cannot supply the substantial reason the State has not shown. On this
record, the residency rule favors applicants from neighboring States simply
because their States touch Texas. That geographic happenstance is not a
substantial reason to treat otherwise identical applicants differently. It is the
very interstate favoritism Article IV forbids.
* * *
On the present record, escrow work is a protected common calling,
and Texas has not shown that its residency requirement bears a close relation
_____________________
60
Payton v. New York, 445 U.S. 573, 600 (1980). Even if the residency rule could
be deemed “longstanding,” it is hardly “widespread.” Other than the statute at issue here,
the State (perhaps wisely) does not point to any other statute requiring state-line contiguity
as a prerequisite to professional licensure.
61
See Act of May 26, 2009, 81st Leg., R.S., ch. 155, § 1, 2009 Tex. Gen. Laws 489,
489 (codified at Tex. Ins. Code § 2652.051(c)(1)).
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to any substantial interest. Polk is therefore likely to succeed on his Privileges
and Immunities claim. 62
B. Irreparable Harm
Irreparable harm must be “more than speculative; there must be more
than an unfounded fear on the part of the applicant.” 63 The district court
found this factor lacking solely because Polk “has brought similar cases in
other states without requesting a preliminary injunction, thus suggesting
slight, if any, perception of actual irreparable injury.”
That reasoning applied the wrong inquiry. Irreparability turns on
whether the injury can be remedied after final judgment. Polk’s litigation
choices in cases involving different laws, defendants, and procedural
postures shed little light on that question. Because the district court relied on
an “erroneous legal principle[],” our review is de novo. 64
Sovereign immunity largely resolves the issue.
“An injury is ‘irreparable’ only if it cannot be undone through
monetary remedies.” 65 Sovereign immunity forecloses damages against
Commissioner Crawford in her official capacity. 66 We have therefore treated
_____________________
62
Polk also argues that the regional residency requirement fails rational-basis
review under the Equal Protection Clause. Because he is likely to succeed on his Privileges
and Immunities claim, and because that claim supports the preliminary relief he seeks in
full, we need not reach the equal protection question. We leave it, along with the merits, to
the district court in the first instance.
63
Louisiana v. Biden, 55 F.4th 1017, 1034 (5th Cir. 2022) (internal quotation marks
and citations omitted).
64
See Opulent Life Church, 697 F.3d at 288.
65
Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B
1981) (quotation omitted).
66
Wallace v. Edwards, 30 F.3d 1493, 1493 (5th Cir. 1994) (per curiam); see also
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102–03 (1984) (“[W]hen a plaintiff
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economic loss as irreparable when sovereign immunity leaves no damages
remedy. 67 Every engagement Polk loses, every appointment he cannot take,
and every client who turns elsewhere because he lacks the license represents
a loss no later judgment can restore. This is conventional irreparable harm,
not a doctrinal presumption.
The State calls Polk’s affidavit “conclusory” and “self-serving.” But
the affidavit is evidence, and its assertions are specific. Discovery had not
begun because the State had not answered. Polk’s affidavit stood unrebutted;
the State offered no counter-affidavit and sought no cross-examination or
credibility finding. Polk swore that existing clients had “an immediate need”
for his Texas services, that the rule had caused him “to lose business
opportunities and associated revenue,” and that those lost opportunities
“cannot be recaptured at a later date” and diminish his goodwill, reputation,
and competitive standing. The record therefore contains unrebutted sworn
evidence of immediate and nonrecoupable losses. And the State cannot
convert its own failure to rebut sworn evidence into an evidentiary deficit for
Polk.
The State’s reliance on Celsis does not alter the result. That patent
case involved market dynamics requiring expert explanation, and the Federal
Circuit credited expert testimony because the theory of harm demanded it. 68
No expert is needed to understand that excluding a professional from a
licensed market costs him work in that market. Nor, before discovery, must
_____________________
sues a state official alleging a violation of federal law, the federal court may award an
injunction that governs the official’s future conduct, but not one that awards retroactive
monetary relief.”).
67
See Clarke v. CFTC, 74 F.4th 627, 643 (5th Cir. 2023) (finding economic harm
irreparable because sovereign immunity precluded money damages).
68
Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012).
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Polk identify every transaction he will lose. His specific, unrebutted affidavit
adequately supports the point at this stage.
Polk’s unrecoverable losses suffice. We therefore need not decide
whether every likely Article IV violation independently constitutes
irreparable harm.
* * *
Polk’s sworn evidence establishes far more than an “unfounded
fear.” 69 Each day the rule excludes him produces losses no later award can
reimburse. The irreparable-harm factor favors preliminary relief.
C. The Equities and the Public Interest
When the government is the opposing party, the balance of equities
and the public interest merge. 70 The district court made no express finding
on either factor. Its only relevant observation was that preliminary relief
would be “precipitous” because the statute was old. But a party-specific
preliminary injunction does not finally “overturn” a statute. It temporarily
prevents the Commissioner from applying two provisions to Polk while the
court resolves the merits.
The State correctly observes that enjoining a duly enacted law carries
an institutional cost. But that interest cannot be dispositive in every
constitutional case; otherwise, no state law could ever be preliminarily
enjoined. Its weight depends on the plaintiff’s likelihood of success, the scope
of relief, and the concrete harm to the State. Here, Polk is likely to prevail,
the injunction is limited to him, the rest of Texas’s regulatory regime remains
intact, and the State identified no concrete harm from evaluating him under
_____________________
69
Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985).
70
Space Expl. Techs. Corp. v. NLRB, 151 F.4th 761, 780 (5th Cir. 2025).
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No. 25-20524
the same substantive safeguards it applies to applicants from Texas and
adjacent States. Polk, meanwhile, remains excluded from the licensed market
and continues to suffer losses that sovereign immunity makes unrecoverable.
On this record, the balance is not close, and it favors interim relief.
The public interest also favors relief because the challenged law is
likely unconstitutional. 71 Injunctions vindicating constitutional rights are
“always in the public interest.” 72 Article IV in particular was designed to
create a national economic union in which citizens of one State may pursue
common callings in another State on equal terms. 73 The injunction leaves
Texas’s standards of competence, honesty, bonding, appointment, and
accountability in place while directing the Commissioner to evaluate Polk
without the challenged residency screen. The resulting relief respects both
Texas’s regulatory authority and Article IV’s command of equal treatment.
III. Conclusion
Texas may regulate escrow work rigorously. It may demand
competence, experience, bonding, audits, discipline, and any other safeguard
bearing on integrity and accountability. But Article IV requires the line to
track the risk. Texas may not deem a Shreveport applicant trustworthy and a
Chicago applicant untrustworthy merely because Louisiana touches Texas
and Illinois does not. The State may screen for professional risk—but it may
not use adjacency as a proxy for that risk.
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71
See Ingebretsen ex rel. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th
Cir. 1996).
72
Opulent Life Church, 697 F.3d at 298 (quoting Christian Legal Soc’y v. Walker,
453 F.3d 853, 859 (7th Cir. 2006)).
73
Piper, 470 U.S. at 281.
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No. 25-20524
Polk is likely to succeed on his Privileges and Immunities claim. His
continuing exclusion inflicts economic and reputational losses that no
damages award can repair. And a narrow injunction therefore serves the
equities and public interest while the district court resolves the merits.
Accordingly, we REVERSE the district court’s denial of Polk’s
motion for a preliminary injunction and REMAND with instructions to
ENTER a preliminary injunction prohibiting the Commissioner from
enforcing Sections 2652.051(c)(1) and 2652.056(1) against Polk.
19