ENERGY TRANSFER LP ENABLE MIDSTREAM PARTNERS LP AND ENABLE GP LLC v. JOHN ADAM PURLAND AND HEATHER PURLAND INDIVIDUALLY AND AS NEXT FRIEND ON BEHALF OF RI TA AND WY (2026)

OPINION

Parties can agree to arbitrate disputes arising from a worker's employment and that the arbitration agreement is governed by the Federal Arbitration Act (the FAA).¹ But section 1 of the FAA itself states, “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”² As construed by the Supreme Court of the United States, the italicized language refers only to “transportation workers,” so the FAA does not apply to their employment contracts.

In this appeal from the trial court's denial of a motion to compel arbitration and to stay litigation, the appellants argue alternatively that (1) the parties' agreement that the FAA applies to their arbitration agreement eliminates the need to consider whether the FAA's transportation-worker exemption applies; (2) if one still must determine whether the transportation-worker exemption applies, then the agreement delegates that question to the arbitrator; and (3) if that issue must instead be decided by a court, then the trial court erred in impliedly finding that the worker in this case—a pipeline technician who maintains and repairs valves on interstate natural-gas pipelines—is a member of a class of transportation workers whose employment agreements are exempt from the FAA.

The Supreme Court of the United States tells us that the answers to the first two questions must be “no”; neither the parties' agreement that the FAA applies nor a broad delegation clause eliminates the need for the trial court to determine whether the exemption applies. We further conclude that the employee at issue was a transportation worker, and thus, claims arising from his employment contract are exempt from the FAA. Although the parties raise other arguments for and against arbitrability under other statutes or the common law, those arguments are all encompassed by the agreement's broad delegation clause, so an arbitrator must ultimately determine whether the merits of the personal-injury and wrongful-death claims at issue will be decided by an arbitrator or a court.

We accordingly reverse the trial court's rulings denying the appellants' motion to compel arbitration and to stay litigation, and we remand the case to the trial court with instructions as described herein.

I. BACKGROUND

John Purland was a Louisiana resident who was employed as a Pipeline Technician IV in his employer's Operations & Maintenance Department. More than 90% of his work consisted of field testing, lubricating, and “exercising” natural-gas pipeline valves (that is, opening and closing the valves to prevent seizing). He also frequently repaired pipeline valves.

As a condition of his employment, Purland entered into a stand-alone Arbitration Agreement in which he agreed to the arbitration of nearly all claims ³ by or against Energy Transfer arising out of Purland's employment.⁴ The Agreement states that “[a]ll disputes covered by this Agreement shall be decided by an arbitrator through final and binding arbitration and not by way of court or jury trial.” The Agreement contains an extremely broad delegation clause granting an arbitrator “exclusive authority to resolve any dispute relating to the interpretation, applicability, scope, alleged waiver, enforceability or formation of this Agreement.” The Agreement requires arbitration “under the then-current Employment Arbitration Rules of the AAA.” It also contains a “governing law” provision specifying that it is governed by the FAA, but if the FAA does not apply, then the parties agree that the TAA applies.

In the spring of 2022, Energy Transfer allegedly sent Purland and his co-worker, geologist and environmental specialist Clay Moock, to the site of a reported pipeline leak. The two men drove to the site of the leak in an all-terrain vehicle, but as they arrived at the site, the leaked gas exploded, and Purland and Moock suffered catastrophic burns. The Moock and Purland families brought separate suits, and Purland died while this suit was pending.

Energy Transfer moved to compel arbitration and to stay proceedings in the trial court during arbitration. The Purlands filed a response and supporting evidence, including a document identified as Purland's “Second Affidavit.” The day before the oral hearing on the motion, the Purlands filed a surreply to which they attached additional evidence, including the affidavits of two experts and Purland's “Third Affidavit.” Energy Transfer immediately moved the next day for leave to respond to the surreply, attaching its proposed response but no additional evidence.

At the hearing on October 17, 2023, Energy Transfer brought up Purland's surreply, and the trial court said, “In terms of the surreply, I will give you an opportunity to respond to that. That opportunity window will be very short. And that means it will be on Monday—your response should be. In reference to that, I will be taking this under advisement.” The following morning, Energy Transfer filed “Response and Objections to Plaintiffs' Surreply Filed Day Before Oral Hearing,” noting that it was filed “[w]ith the Court's permission granted October 17, 2023.” It is a slightly revised version of the proposed response that had been submitted with Energy Transfer's motion for leave to respond.

On December 5, 2024—over a year after the hearing—the trial court signed an order denying Energy Transfer's motion for leave to respond. The order does not strike the slightly revised response that Energy Transfer had filed with the trial court's leave on October 18, 2023. In its proposed response on October 17, 2023, and in its slightly revised response filed on October 18, 2023, Energy Transfer objected to the affidavits attached to the Purlands' surreply, and in the same order that denied Energy Transfer's motion for leave to respond to the sur-reply, the trial court overruled these objections.

II. ISSUES PRESENTED

In three issues, Energy Transfer contends that the trial court reversibly erred in (a) denying Energy Transfer's motion to compel arbitration, (b) denying Energy Transfer's related motion to stay litigation, and (c) overruling Energy Transfer's objections to the affidavits relied upon by the Purlands in their surreply opposing arbitration.

III. STANDARD OF REVIEW

We review the denial of a motion to compel arbitration for abuse of discretion. Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or acts without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In evaluating the ruling, we defer to the trial court's factual determinations if they are supported by evidence but review its legal determinations de novo. Henry, 551 S.W.3d at 115.

If the order denying a motion to compel arbitration does not state the grounds for the decision, we must affirm the order if any of the grounds asserted in the trial court for denying the motion are meritorious. Pearland Urban Air, LLC v. Cerna, 693 S.W.3d 711, 715 (Tex. App.—Houston [14th Dist.] 2024), aff'd sub nom. Cerna ex rel. R.W. v. Pearland Urban Air, LLC, 714 S.W.3d 585 (Tex. 2025). If the trial court issues no findings of fact or conclusions of law, it is implied that the trial court made all necessary findings of fact to support its ruling. Energy Transfer LP v. Moock, No. 14-23-00858-CV, –S.W.3d–, 2025 WL 1559841, at *3 (Tex. App.—Houston [14th Dist.] June 3, 2025, pet. filed). We review implied factual findings for legal sufficiency, crediting favorable evidence if a reasonable fact finder could do so, and disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The evidence is legally sufficient if reasonable and fair-minded people could find the challenged fact. Id.

IV. THE GATEWAY ISSUES

Absent unmistakable contrary evidence, “gateway issues” such as whether a valid arbitration exists and whether it binds a nonparty are committed to the courts to decide. Lennar Homes of Tex. Land & Constr., Ltd. v. Whiteley, 672 S.W.3d 367, 376 (Tex. 2023). These are questions of law, which we review de novo. Id.

A movant to compel arbitration bears the burden to establish that a valid arbitration agreement exists. Cerna, 714 S.W.3d at 588–89. Although there are many ways in which an arbitration agreement can be said to “invalid,” the initial inquiry is whether, under state contract law, an agreement exists at all. Id. at 589.

The elements required for the formation of a valid contract under Texas law are: (1) an offer, (2) acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Levetz v. Sutton, 404 S.W.3d 798, 803 (Tex. App.—Dallas 2013, pet. denied). Here, the parties no longer dispute that, in entering into the arbitration agreement, they satisfied the conditions necessary to form a contract under Texas law and that, to the extent that it is enforceable at all, it is enforceable by the Purlands and Energy Transfer.

Ordinarily, “the particulars of the agreement control the court's next steps.” Cerna, 714 S.W.3d at 589. The court would next decide whether the claims fall within the agreement's scope, unless the parties agreed to delegate that decision to an arbitrator. Id. at 589–90. But the parties dispute whether there are additional gateway issues and if so, who must decide them. The Purlands argue that the arbitration agreement is unenforceable under the FAA, the Texas General Arbitration Act (the TAA), Louisiana arbitration law, and Texas common law. They contend that whether the FAA and TAA apply are gateway issues that must be decided by a court. According to the Purlands, the FAA is inapplicable because Purland was a transportation worker whose employment contract is exempt from the FAA, and the TAA is inapplicable because the TAA requires agreements to arbitrate personal-injury claims to be signed by the parties and their attorneys, and no attorneys signed the Agreement.

Because the Agreement specifies that it is governed by the FAA and addressees the TAA only if the FAA is inapplicable, we begin with the FAA. Energy Transfer argues that (a) neither the court nor an arbitrator decide whether the FAA applies because the parties eliminated the question by specifying that the Agreement is governed by the FAA; (b) if the question still must be answered, the Agreement's delegation clause has committed the question to an arbitrator; and (c) if the question must be answered and cannot be delegated, then the FAA's transportation-worker exemption does not apply.

V. THE FAA'S SECTION 1 EXEMPTION

Under the FAA, a written provision in “a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ․ shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract or as otherwise provided” in the FAA. 9 U.S.C. § 2. But the FAA also contains the exemption, “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1 (emphasis added). Acceptance of the arbitration agreement was a condition of Purland's employment and it is undisputed that his claims arose from that employment, so if Purland was a member of a “class of workers engaged in foreign or interstate commerce,” then the FAA does not apply to the Purlands' claims. As the parties invoking this exemption, the Purlands bore the burden to prove that it applies. Amazon.com Servs., LLC v. De La Victoria, 711 S.W.3d 250, 259 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (citing Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91–92, 121 S. Ct. 513, 148 L. Ed. 2d 373 (2000)).

Energy Transfer argues that, for two reasons, this is not an issue for a court to decide. But as discussed below, neither reason is valid.

A. Courts Must Decide Whether the Exemption Applies.

According to Energy Transfer, two of the arbitration agreement's provisions remove from judicial consideration the question whether the FAA exemption applies. First, Energy Transfer contends that because the parties agreed in the Governing Law Provision that the FAA applies, the matter has already been decided. Second, Energy Transfer argues that if it can be disputed whether the FAA applies, the agreement's Delegation Provision delegates that responsibility to an arbitrator. But Energy Transfer's first argument fails simply as a matter of contract construction, and its second argument fails as a matter of law.

1. The parties did not agree to disregard the section 1 exemption and apply the remainder of the FAA.

In arguing that the parties have already agreed that the FAA applies, Energy Transfer relies on the two sentences making up the arbitration agreement's Governing-Law Provision.

In the first sentence the parties agreed that the FAA “governs this Agreement, which evidences a transaction involving commerce.” But the section 1 exemption is part of the FAA; the parties did not agree to exclude that provision, and we cannot read such an exclusion into the contract. See Sundown Energy LP v. HJSA No. 3, Ltd. P'ship, 622 S.W.3d 884, 889 (Tex. 2021) (per curiam) (explaining that “courts may not rewrite a contract under the guise of interpretation”); Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Crocker, 246 S.W.3d 603, 606 (Tex. 2008) (courts must give a contract's words “words their plain meaning, without inserting additional provisions into the contract”). Thus, if Purland is among a class of workers engaged in interstate commerce, then the FAA itself withdraws its authorization for a court to compel arbitration.

The second sentence of the Governing-Law Provision confirms this, for it states, “If the Federal Arbitration Act does not apply, the parties agree that the Texas Arbitration Act would apply.” Energy Transfer's argument ignores this sentence, but one of the canons of contract construction is that contracts are “construed to give effect to all contract provisions, and render none meaningless.” King v. Dall. Fire Ins. Co., 85 S.W.3d 185, 193 (Tex. 2002). Energy Transfer's interpretation would render half of the Governing-Law Provision meaningless.

2. Parties cannot delegate the issue to an arbitrator.

Energy Transfer's next argument relies on the arbitration agreement's extremely broad Delegation Provision, delegating to an arbitrator the “exclusive authority to resolve any dispute relating to the interpretation, applicability, scope, alleged waiver, enforceability or formation of this Agreement.” But as the Supreme Court of the United States explained in New Prime Inc. v. Oliveira, whether the FAA's section 1 exemption applies is a question that cannot be delegated. 586 U.S. 105, 110–12, 139 S. Ct. 532, 202 L. Ed. 2d 536 (2019).

As the high court has construed the FAA, the sequence of its provisions matters. Section 1 exempts from the FAA the employment contracts of certain classes of workers, and section 2 specifies that the FAA applies only to a written arbitration provision in a “maritime transaction or a contract evidencing a transaction involving commerce.” 9 U.S.C. §§ 1, 2. These “antecedent statutory provisions limit the scope of the court's powers under §§ 3 and 4” of the FAA to stay litigation and compel arbitration. New Prime, 586 U.S. at 110 (citing 9 U.S.C. § 3 (staying litigation) and § 4 (compelling arbitration)). Thus, a court cannot compel arbitration under the FAA, even if the agreement contains the broadest possible delegation provision, unless the court first determines that the section 1 exemption does not apply. Id. at 111 (“The parties' private agreement may be crystal clear and require arbitration of every question under the sun, but that does not necessarily mean the Act authorizes a court to stay litigation and send the parties to an arbitral forum.”).

B. Courts Must Apply the Correct Test.

Having concluded that the trial court must determine whether the section 1 exemption applies, we turn to the parties' arguments supporting or opposing the trial court's implied conclusion that the exemption does not apply. The parties have not cited, and we have not found, any case dealing with an employment contract of the class of workers who maintain and repair interstate natural-gas pipelines. Energy Transfer and the Purlands instead support their arguments with analogies to cases that address facts with varying degrees of similarity to the facts of this case.

But even if a case addresses very similar facts, the case may have little persuasive value if the authoring court reached its result by applying the wrong test. Because the test whether the section 1 exemption applies has evolved considerably in the last twenty-five years, we briefly address these changes to show why we accord little weight to some of the cases the parties cite.

1. 2001–2005: Section 1 applies to “transportation workers.

For our purposes, the key language in section 1 is, “ nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” By 2001, all but one of the federal appellate courts construed “the class of workers engaged in foreign or interstate commerce” to mean “transportation workers,” that is, workers “actually engaged in the movement of goods in interstate commerce.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 112, 121 S. Ct. 1302, 149 L. Ed. 2d 234 (2001) (quoting Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465, 1471 (D.C. Cir. 1997)). The Ninth Circuit, however, read section 1 to exempt all employment contracts. Id.

The U.S. Supreme Court explained in Circuit City that “engaged in ․ commerce” has a narrower meaning than “affecting commerce” or “involving commerce.” Id. (citing Gulf Oil Corp. v. Copp Paving Co., Inc., 419 U.S. 186, 195, 95 S. Ct. 392, 42 L. Ed. 2d 378 (1974), with the parenthetical, “phrase ‘engaged in commerce’ ‘appears to denote only persons or activities within the flow of interstate commerce”).⁵ “Engaged in commerce” is a “term of art, indicating a limited assertion of federal jurisdiction.” Id. at 106 (citing U.S. v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279–80, 95 S. Ct. 2150, 45 L. Ed. 2d 177 (1975)). Although the cases cited in support of these descriptions construed the expression “engaged in commerce” as it appeared in other federal statutes—specifically, the Robinson-Patman Act and the Clayton Act ⁶ —the Court construed the term in the same way under the FAA.

“In the absence of contrary indication, we assume that when a statute uses ․ a term [of art], Congress intended it to have its established meaning.” McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 342, 111 S. Ct. 807, 112 L. Ed. 2d 866 (1991)). In stating that “engaged in commerce” is a term of art and in citing cases in which the Court construed the same phrase in other statutes, the Court strongly hinted that cases construing federal statutes that rely on the same term of art would be helpful in determining whether a person was “engaged in foreign or interstate commerce” under the FAA. But lacking more specific guidance, courts began to develop their own tests.

2. 2005–2022: The Eighth Circuit develops the eight-factor Lenz test to identify “transportation workers.”

In 2005, the Eighth Circuit attempted to fill that gap by synthesizing an eight-factor test, examining

1. whether the employee works in the transportation industry;

2. whether the employee is directly responsible for transporting the goods in interstate commerce;

3. whether the employee handles goods that travel interstate;

4. whether the employee supervises employees who are themselves transportation workers, such as truck drivers;

5. whether, like seamen or railroad employees, the employee is within a class of employees for which special arbitration already existed when Congress enacted the FAA;

6. whether the vehicle itself is vital to the commercial enterprise of the employer;

7. whether a strike by the employee would disrupt interstate commerce; and

8. the nexus that exists between the employee's job duties and the vehicle the employee uses in carrying out his duties (i.e., a truck driver whose only job is to deliver goods cannot perform his job without a truck).

Lenz v. Yellow Transp., Inc., 431 F.3d 348, 352 (8th Cir. 2005). Although the Lenz court described these factors as non-exclusive and did not specify how to weigh them, most courts using the test ruled based on the number of factors that applied. The first factor, however, could be dispositive, because most courts concluded that only workers in the transportation industry could be transportation workers.

The Lenz factors focus heavily on the business of the employer and the individual employee's duties rather than the “class of workers” to which the worker belongs, as stated in section 1 of the FAA. This produced some surprising results: a Texas court applying the Lenz factors went so far as to hold that the exemption applied to an “orientation instructor” of truck drivers, who trained drivers to use software, operate stick shifts, and perform pre-trip inspections. OEP Holdings, LLC v. Akhondi, 570 S.W.3d 774, 780 (Tex. App.—El Paso 2018, pet. denied).

3. 2022–present: the U.S. Supreme Court's Saxon decision refines the definition of “transportation workers” and requires a two-step test to determine if the section 1 exemption applies.

In 2022, the United States Supreme Court provided further guidance in Southwest Airlines Co. v. Saxon, 596 U.S. 450, 142 S. Ct. 1783, 213 L. Ed. 2d 27 (2022). At issue in that case was whether the FAA's section 1 exemption applied to an airline's ramp supervisor who frequently loaded cargo onto airplanes. Notably, Saxon had argued to the Seventh Circuit that under the Lenz factors, “she was a transportation worker because Southwest was a transportation company, and she was responsible for loading and unloading goods for transportation.” Saxon v. Sw. Airlines Co., 993 F.3d 492, 495 (7th Cir. 2021), aff'd, 596 U.S. 450, 142 S. Ct. 1783, 213 L. Ed. 2d 27 (2022). The intermediate appellate court pointed out that the Lenz court “did not emphasize the text of § 1, its original meaning in 1925, or the scope of the two enumerated categories,” that is, seamen and railroad employees. Id. at 496. The Seventh Circuit instead followed its own precedent in Wallace v. Grubhub Holdings, Inc., 970 F.3d 798 (7th Cir. 2020), determining whether the worker is engaged in interstate commerce by asking “whether the interstate movement of goods is a central part of the class members' job description, meaning that the workers are actively occupied in the enterprise of moving goods across interstate lines.” Saxon, 993 F.3d at 491 (quoting Wallace, 970 F.3d at 801–02) (cleaned up).

The high court affirmed, agreeing that the proper inquiry did not focus on the employer's industry. Saxon, 596 U.S. at 455–56. Instead, courts must first define the relevant “class of workers” to which the worker belongs, then determine whether that class of workers is “engaged in foreign or interstate commerce.” Id. at 455.

Saxon clarified that, to identify the relevant “class of worker,” courts must not rely on the nature of the employer's business but instead identify the work that the person frequently performs, then consider “the actual work that the members of the class, as a whole, typically carry out.” Id. at 456. Saxon was a ramp supervisor, and although “ramp supervisors” train and supervise teams of ramp agents, they also “[f]requently ․ step in to load and unload cargo alongside ramp agents.” Id. at 454. The Court repeated the word “frequently” more than a half-dozen times, emphasizing that the class of workers to which a person belongs is determined not by the person's title but by the tasks they frequently perform.⁷ The Court determined that Saxon “belongs to a class of workers who physically load and unload cargo on and off airplanes on a frequent basis,” and referred to the class as “airplane cargo loaders.” Id. at 455–56.

After identifying the class of workers to which the person belongs, the next step is to determine whether that class of workers is “actively engaged in [the] transportation of goods across borders via the channels of foreign or interstate commerce.” Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246, 256, 144 S. Ct. 905, 218 L. Ed. 2d 204 (2024) (quoting Saxon, 596 U.S. at 458) (cleaned up). The Court explained that exempt workers “must at least play a direct and necessary role in the free flow of goods across borders,” or stated differently, transportation workers “must be actively engaged in transportation of those goods across borders via the channels of foreign or interstate commerce.” Saxon, 596 U.S. at 458 (quoting Circuit City, 532 U.S. at 119 and 121) (cleaned up). The workers must “perform activities within the flow of interstate commerce.” Id. at 463. The Saxon court determined that loading and unloading cargo from an airplane “is so closely related to interstate transportation as to be practically a part of it”; and thus, such workers are, “as a practical matter, part of the interstate transportation of goods.” Id. at 457 (quoting Balt. & Ohio Sw. R.R. Co. v. Burtch, 263 U.S. 540, 544, 44 S. Ct. 165, 166, 68 L. Ed. 433 (1924)) (cleaned up).

As in Circuit City, the Saxon court relied on a case construing the expression “engaged in commerce” in other federal statutes. Specifically, it took the “closely related” test from Burtch, which pre-dates the FAA. Burtch is an early case under the Federal Employers' Liability Act (FELA),⁸ under which it was necessary to show that “the employee at the time of the injury was engaged in interstate transportation, or in work so closely related to it as to be practically a part of it.” Burtch, 263 U.S. at 543 (quoting Shanks v. Del., Lackawanna & W. R.R. Co., 239 U.S. 556, 558, 36 S. Ct. 188, 60 L. Ed. 436 (1916)) (cleaned up). Because a 1939 amendment greatly expanded FELA's reach to include carrier employees whose duties include work “in furtherance of interstate or foreign commerce” or who “in any way directly or closely and substantially, affect such commerce,” FELA cases governed by the amended law apply a different test.⁹

C. Applying the Saxon test to this case, Purland is exempt from the FAA.

To determine whether section 1 exempts Purland's arbitration agreement from the FAA, the trial court had to (1) identify the class of workers to which Purland belonged, based on the work he “frequently” performed; then (2) determine whether that class of worker was “engaged in commerce,” whether foreign or interstate, as that term of art is construed.

1. Purland belongs to two classes of workers: those who inspect interstate natural-gas pipelines and valves, and those who maintain and repair pipeline valves.

Purland attested that “pipeline technicians like [himself]” “directly control, affect, and maintain the flow of natural gas through interstate transmission pipelines through our hands-on work.” But such statements are conclusory. See Moock, 2025 WL 1559841, at *4 (Moock's unexplained statement that his “duties involved actively controlling, working with, and handling regulated materials in transmission pipelines” is conclusory and incompetent to raise a fact issue); id. (Moock's statement that he “directly engaged in restoring the interrupted flow of product, and he was necessary to the continued flow and transportation of natural gas” is conclusory). To identify the tasks that Purland frequently performed, it is the factual description of those tasks that matter, not his broad characterization of them.

We need not spend much time on this, because the parties largely agree. The Purlands maintain that Purland was a member of the class of employees that frequently maintain and repair valves on interstate pipelines, while Energy Transfer characterizes Purland as a member of the class of employees that frequently “inspect, maintain, and repair” natural gas pipelines.

Energy Transfer is correct in representing that Purland's work included all three activities. Purland attested, without contradiction, that his work frequently involved “inspecting valves for leaks and corrosion, testing the valves, exercising the valves, and performing repairs.” He further stated, “I frequently investigated, found, and repaired valve leaks,” and “[w]hen I found exposed piping, I inspected it for corrosion, pitting, dents, or other damage.”

But a person can be a member of more than one class of employees. In Saxon, for example, Saxon was an airline ramp supervisor, but she and other ramp supervisors “frequently fill[ed] in as ramp agents.” The Court held that Saxon belonged to “a class of workers who physically load and unload cargo on and off airplanes on a frequent basis”—regardless of “whether supervision of cargo loading alone would suffice” to exempt a class of workers under section 1 of the FAA. Saxon, 596 U.S. at 456 & n.1.

Like Saxon, Purland frequently performed a variety of tasks. He frequently inspected valves and pipelines, and he also frequently maintained and repaired pipeline valves. But regardless of whether inspection of pipelines would itself be sufficient to render that class of workers exempt under section 1, the question remains whether the class of workers who maintain and repair the valves on interstate natural-gas pipelines are exempt.

Because the parties agree that Purland frequently maintained and repaired valves on interstate pipelines, the question of whether that class of worker is engaged in foreign or interstate commerce presents a question of law, which we review de novo. See Marsh USA Inc. v. Cook, 354 S.W.3d 764, 768 (Tex. 2011) (“We review de novo issues of statutory construction and application of the law to undisputed facts ․”); Rudisill v. Arnold White & Durkee, P.C., 148 S.W.3d 556, 559 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (courts determine issues of statutory construction and the application of the statute to undisputed facts as a matter of law).

2. The class of workers that maintain and repair the valves of interstate natural-gas pipelines are “engaged in interstate commerce” within the meaning of section 1 of the FAA.

In determining whether a class of workers is “engaged in interstate commerce” as used in section 1 of the FAA, we could have no surer guide than to follow the example of the Supreme Court of the United States. As previously discussed, the high court treats “engaged in commerce” as a term of art, and has construed it the same way in cases under the FAA and under the pre-1939 version of the FELA. Thus, the Supreme Court's construction of the same term of art in such cases help to define its scope.

As we have seen, the Saxon court relied on an early FELA case in holding that a person is engaged in interstate commerce if the person frequently performs “work so closely related to it as to be practically a part of it.” Saxon, 596 U.S. at 457 (quoting Burtch, 263 U.S. at 544). The Purlands call our attention to another early FELA case that contains an instructive analysis.

In Pedersen v. Delaware, Lackawanna, & Western Railroad Co., the worker at issue was a railroad employee who performed alterations, maintenance, and repair of the railroad's tracks and bridges. 229 U.S. 146, 150, 33 S. Ct. 648, 57 L. Ed. 1125 (1913). The employee was carrying a bag of bolts or rivets to be used in repairing the Duffield bridge, and while passing over an intervening temporary bridge, he was struck by a train. Id. In determining whether the employee's work was so closely connected to interstate commerce as to be a part of it, the Court held that the answer was “obvious”:

Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct ‘any defect or insufficiency ․ in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment' used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it.

Id. at 151 (emphasis added).

The Court treats other instrumentalities of interstate commerce that are fixed in place in the same way that it treats railroad tracks and bridges. For example, in Southern Pacific Company v. Industrial Accident Commission, a worker was injured while maintaining the insulators supporting a wire that carried electricity from the railroad carrier's power-generation station to the trolley wires that powered the motors used to move the carrier's cars in both interstate and intrastate commerce. 251 U.S. 259, 262, 40 S. Ct. 130, 64 L. Ed. 258 (1920). The Court explained that “[p]ower is no less essential than tracks or bridges to the movement of cars” and that if the flow of electricity had been interrupted, the cars would have instantly stopped moving. Id. at 263. The Court concluded that the employee's work “was directly and immediately connected with interstate transportation and an essential part of it.”

The same test is used in cases under other federal statutes as well. In Overstreet v. North Shore Corp., the Supreme Court of the United States followed Pedersen, applying the same “practical test” to cases under the Fair Labor Standards Act (FLSA) that it applied in the early FELA cases. 318 U.S. 125, 128–30, 63 S. Ct. 494, 87 L. Ed. 656 (1943). The respondent in Overstreet owned and operated a toll road and a drawbridge over which the toll road passed. Id. at 127. The toll road connected an interstate arterial highway to an island off the coast of Florida. Id. The petitioners included a drawbridge operator, a toll collector, and a third worker “engaged in maintenance and repair work on the road and the bridge.” Id.

In applying the test, the Court wrote

Vehicular roads and bridges are as indispensable to the interstate movement of persons and goods as railroad tracks and bridges are to interstate transportation by rail. If they are used by persons and goods passing between the various States, they are instrumentalities of interstate commerce. Those persons who are engaged in maintaining and repairing such facilities should be considered as ‘engaged in commerce’ even as was the bolt carrying employee in the Pedersen case, supra, because without their services these instrumentalities would not be open to the passage of goods and persons across state lines.

Id. at 129–30; see also J.F. Fitzgerald Constr. Co. v. Pedersen, 324 U.S. 720, 724–25, 65 S. Ct. 892, 89 L. Ed. 1316 (1945) (stating, in an FLSA case, “It is clear that employees who actually repair abutments or substructures of bridges on which are laid tracks used in interstate transportation are ‘engaged in (interstate) commerce’ ”).

Like the railroad tracks, bridges, roads, and power lines in the cases above, natural gas pipelines must be maintained. Purland attested that pipeline valves are installed at intervals along the pipeline and can be used to control gas flow, regulate pressure, direct the flow of gas to specific parts of the pipeline, or shut off the flow entirely. He explained that the valves must be frequently opened and closed to dislodge sediment or corrosion that would ultimately cause the valves to seize. He also stated that “[w]ithout properly functioning valves, the pipeline system will not transport gas.”

In arguing that Purland was not engaged in interstate commerce, Energy Transfer primarily relies on five cases, but each dealt with a worker who was a pipeline inspector or whose work was treated as analogous only to that of a pipeline inspector.¹⁰ None dealt with a member of a class of workers that maintains and repairs pipelines or other instrumentalities of foreign or interstate commerce. Moreover, none discuss the United States Supreme Court's application of the same test under the FELA or FLSA. The authoring courts either do not mention the other statutes at all or dismiss the cases addressing them out of hand; none mention that Saxon itself relied on a pre-FAA FELA case.¹¹ It is true that the statutes differ in how they determine which tasks are at issue, with the early FELA cases looking at what the particular worker was doing at the moment of injury, even if it was not what the worker frequently does, while the FAA is construed to require courts to look at what the class of worker “frequently” does, even if it was not what the worker was doing when injured. But once the relevant task or tasks have been identified, both kinds of cases applied the “closely related” test, and both should reach the same result.

In sum, the Supreme Court held in Burtch, Pedersen, and other early FELA cases that workers who maintain and repair the instrumentalities of interstate commerce perform work “so closely connected to interstate commerce as to be a part of it,” even though those instrumentalities were fixed in place. In Overstreet, the Court adopted the same test for FLSA cases and reached the same results. And in Saxon, the Court again applied the “closely related” or “closely connected” test when determining whether a person was “engaged in interstate commerce” under the FAA. Although we have found no case directly addressing the question whether a person who maintains and repairs the valves on interstate natural-gas pipelines likewise performs work “so closely connected to interstate commerce as to be a part of it,” we can see no reason why the outcome under the FAA should differ from the outcome under the FELA and FLSA cases discussed above.

We conclude that Purland was a transportation worker and his employment contract falls within the exemption of section 1 of the FAA. Thus, the Purlands cannot be compelled to arbitrate under the FAA.

That conclusion does not itself answer the question whether the trial court erred in denying Energy Transfer's motion to compel arbitration. We must also address the parties' arguments concerning the Texas Arbitration Act, to which we turn next.

VI. THE TAA'S PERSONAL-INJURY EXEMPTION

The parties' Agreement states that it is governed by the FAA, but if the FAA does not apply, then it is governed by the TAA. Energy Transfer argues that under the Agreement's broad delegation clause, the question of whether the TAA applies has been delegated to an arbitrator. The Purlands did not argue in the trial court that the delegation provision does not apply to this question, but on appeal, the Purlands argue that they cannot be compelled to arbitrate under the TAA because the statute does not apply to personal-injury claims unless each party to the claim, on the advice of counsel, agrees in writing to arbitrate and the agreement is signed by each party and each party's attorney. TEX. CIV. PRAC. & REM. CODE § 171.002(a)(3). The Purlands analogize the TAA to the FAA and argue that, just as the question of whether the FAA's section 1 exemption applies is a non-delegable gateway question for a court to decide, the question of whether this contract falls within an exemption to the TAA should be treated as similarly non-delegable.

But the two exemptions are treated differently because they operate differently. This Court held in Pearland Urban Air, LLC v. Cerna that the question of whether the TAA's personal-injury exemption applies is delegable to an arbitrator because it presents a question about an arbitration agreement's scope, not its formation. 693 at 717. The FAA exemption turns on whether a party is a transportation worker, and whether an arbitration agreement exists with a particular party is treated as a gateway question of contract formation. In contrast, the TAA exempts personal-injury claims unless certain additional requirements are met. As the Supreme Court of Texas explained in affirming Cerna, whether an agreement applies to the claims asserted in the suit is a question of scope, and “only courts can decide existence but scope can be delegated.” Cerna, 714 S.W.3d at 590.

We therefore sustain Energy Transfer's first issue in part. Because the question whether the TAA applies must be decided by an arbitrator, and the parties' alternative arguments concerning enforceability on other grounds have likewise been delegated to an arbitrator, the trial court erred in denying Energy Transfer's motion to compel arbitration to decide those issues.¹²

VII. ENERGY TRANSFER'S MOTION TO STAY LITIGATION

An order compelling arbitration under the TAA must include a stay of any proceeding involving an issue subject to arbitration. TEX. CIV. PRAC. & REM. CODE §§ 171.021(c), 171.025. Because an arbitrator has not yet addressed the Purlands' defenses to enforceability, under the TAA or otherwise, proceedings in the trial court must be stayed until such time as the arbitrator disposes of those issues and arbitrates such claims as are determined to be arbitrable.

VIII. ENERGY TRANSFER'S EVIDENTIARY COMPLAINTS

In Energy Transfer's last issue, it argues that the trial court reversibly erred “in considering inadmissible and incompetent affidavits without allowing Energy Transfer to respond.” It is not clear that Energy Transfer was denied the opportunity to respond, because the trial court orally granted leave to respond and did not strike the response filed with the trial court's permission. Moreover, in our analysis we found it unnecessary to consider the challenged affidavits, because the key fact—that Purland is a member of the class of workers that perform maintenance and repairs of the valves on interstate pipelines—is undisputed. We therefore conclude that the trial court's error, if any, in considering the challenged affidavits was harmless. We overrule this issue.

IX. CONCLUSION

We conclude that the Purlands cannot be compelled to arbitrate under the FAA because the Arbitration Agreement was part of Purland's employment contract and Purland was a member of a class of transportation workers whose employment contracts are encompassed by the FAA's section 1 exemption. Because the parties' remaining appellate arguments concerning arbitrability fall within the Agreement's broad delegation clause, those disputes must be resolved by an arbitrator. We accordingly reverse the trial court's order and remand with instructions to the trial court to issue an order,

(1) compelling arbitration of any remaining dispute relating to the Arbitration Agreement's scope (including whether the TAA applies), interpretation, applicability, waiver, and enforceability (including any defenses to arbitration);

(2) compelling arbitration of the merits of the claims that the arbitrator determines are arbitrable; and

(3) staying proceedings in the trial court until arbitration has been had in accordance with the terms of the Arbitration Agreement, as long as Energy Transfer is not in default in proceeding with the arbitration.

FOOTNOTES

1.   9 U.S.C. § 1, et. seq.

2.   Id. § 1 (emphasis added).

3.   The Agreement excepts a few types of claims, none of which are at issue in this case.

4.   The Arbitration Agreement states that “any reference to Employer is intended to refer to the affiliated entity of Energy Transfer LP ․ that employs me ․ , on behalf of itself and Energy Transfer.” The Agreement refers to the employer and Energy Transfer LP collectively as “the Partnership,” and the Agreement applies to claims arising from Purland's employment that are asserted by or against “the Partnership; their parents, subsidiaries and affiliates; its and their predecessors, successors or assigns; the past, present or future officers, directors, general or limited partners, shareholders, members, employees, representatives or agents of any of the previously listed entities, in their capacity as such or otherwise.” The parties no longer dispute that the Arbitration Agreement includes appellants Energy Transfer LP, Enable Midstream Partners, LP, and Enable GP, LLC, and we refer to them collectively as “Energy Transfer” as though the three were a single entity.

5.   Emphasis added.

6.   See Gulf Oil, 419 U.S. at 193–94 & n.9 (citing to the respective statutes and quoting the provisions in which “engaged in commerce” appears); Am. Bldg. Maint. Indus., 422 U.S. at 279–80 (“engaged in commerce” had become a term of art before section 7 of the Clayton Act was re-enacted in 1950).

7.   See Saxon, 596 U.S. at 453 (“[Saxon's] work frequently requires her to load and unload baggage, airmail, and commercial cargo on and off airplanes that travel across the country.”); id. at 454 (“Frequently, ramp supervisors step in to load and unload cargo alongside ramp agents.”); id. at 455 (intermediate appellate court cited “Saxon's ‘uncontroverted declaration’ that ramp supervisors at Midway ‘frequently’ load and unload cargo”) (cleaned up); id. at 456 (stating that “Southwest has not meaningfully contested that ramp supervisors like Saxon frequently load and unload cargo” and quoting the intermediate appellate court's statement repeating Saxon's statement that ramp supervisors “frequently fill in as ramp agents for up to three shifts per week”) (cleaned up); id. at 463 (concluding that “Saxon frequently loads and unloads cargo on and off airplanes that travel in interstate commerce. She therefore belongs to a ‘class of workers engaged in foreign or interstate commerce” to which § 1's exemption applies.”). Unlike the intermediate appellate court, the Supreme Court did not look only at tasks that were “central” to the worker's job.

8.   35 Stat. 65 (1908), now codified at 45 U.S.C. § 51 et seq.

9.   See S. Pac. Co. v. Gileo, 351 U.S. 493, 496–98, 76 S. Ct. 952, 955–56, 100 L. Ed. 1357 (1956) (discussing how the amendment broadened FELA's reach); Reed v. Penn. R.R. Co., 351 U.S. 502, 505, 76 S. Ct. 958, 961, 100 L. Ed. 1366 (1956) (“The test for coverage under the amendment is not whether the employee is engaged in transportation, but rather whether what he does in any way furthers or substantially affects transportation.”).

10.   See, e.g., Moock, supra (environmental specialist); Sain v. TransCanada USA Servs., Inc., No. CV H-22-2921, 2023 WL 417476 (S.D. Tex. Jan. 25, 2023) (pipeline inspector); Whitaker v. Enbridge (U.S.) Inc., 644 F. Supp. 3d 355 (S.D. Tex. 2022) (pipeline inspector); Whitman v. DCP Midstream, LLC, No. 22-CV-106-JFH-CDL, 2022 WL 1836733 (N.D. Okla. June 3, 2022) (pipeline inspector); Cottrill v. MDM Servs. Corp., No. 821CV00817JLSDFM, 2022 WL 19829437 (C.D. Cal. Jan. 20, 2022) (pipeline inspector).

11.   Interestingly, the Supreme Court of the United States recently heard oral argument in a case asking whether the class of workers commonly referred to as “last-mile delivery drivers” is “engaged in interstate commerce” for the purpose of section 1 of the FAA. The petitioner's counsel argued, as Energy Transfer does here, that the early FELA cases are inapposite to that analysis because FELA has a different text and structure from that of the FAA. Justice Sotomayor responded, “You just tried to distinguish them, but they're what we relied on in Saxon.” Oral Argument at 18:30, Flowers Foods, Inc. v. Brock, (No. 24-935), https://www.supremecourt.gov/oral_arguments/audio/2025/24-935.

12.   The parties dispute whether, if the TAA's personal-injury exemption applies, the agreement to arbitrate can nevertheless be enforced under Texas common law or under a Louisiana statute. The Purlands challenged the delegation clause only as it applies to the threshold issue of whether the FAA's section 1 exemption applies, but do not otherwise dispute that it applies to defenses to enforcement.

Tracy Christopher Chief Justice