IN RE: Demaree REED (2026)

Administrative agencies are creatures of statute. They have the power to act only when the Legislature—or, in the case of federal agencies, Congress—grants it to them. Occasionally, the relevant legislative body grants jurisdiction to an agency to resolve matters that otherwise would be decided by a court. But such shared jurisdiction is uncommon. Because altering the usual allocation of power among the branches is so serious, a court considering whether to refer a judicial question to an agency must first determine if the legislative body has in fact authorized the sharing of adjudicative power with respect to the question at issue. Absent a clear legislative grant of jurisdiction to the agency on the relevant question, a Texas court cannot refer the question, even though the court may regard the agency as an expert on the subject matter and desire the agency's input.

Here, the parties joined issue at summary judgment regarding whether the defendant railroad was a “common carrier” under the Federal Employers’ Liability Act (FELA), the sole statute under which the injured plaintiff sued. The trial court, in turn, referred the question to the Surface Transportation Board, a federal agency with jurisdiction over certain railroad disputes. In its petition to the Board following the referral, the railroad sought a determination whether it is a common carrier not under FELA but under a different federal statute. While Congress accorded the Board jurisdiction over some disputes relating to railroads, there is no clear jurisdictional grant empowering the Board to answer the question the parties presented to the trial court: is the railroad a common carrier potentially subject to liability under FELA? The trial court thus abused its discretion by issuing the referral order. We conditionally grant mandamus relief.

I. Background

Demaree Reed, a switchman for Rail Link, Inc., fell from a moving railcar and had his leg amputated as a result. Reed sued Rail Link for negligence and gross negligence under FELA, alleging that Rail Link's failures to establish adequate safety policies, to train, and to provide a safe work environment caused his injuries.¹

Rail Link moved for summary judgment, asserting FELA is inapplicable because Rail Link is not a “common carrier by railroad.”² The trial court denied Rail Link's motion but on reconsideration agreed to refer the question of Rail Link's common-carrier status to the Surface Transportation Board. To effectuate its decision, the trial court ordered Rail Link to file a petition with the Board for “a determination of Rail Link's status as either a common carrier or as a private contract operator.”

In filing its petition with the Board, Rail Link modified the question presented. Rather than ask whether Rail Link is a common carrier under FELA—the question presented in its motion for summary judgment—Rail Link's petition to the Board sought a determination whether Rail Link is a common carrier under a different statute—the ICC Termination Act of 1995 (ICCTA). Notably, ICCTA is not at issue in Reed's personal-injury suit, which alleges a claim for damages under FELA. The Board accepted Rail Link's petition and opened a declaratory-order proceeding. Reed, meanwhile, sought mandamus relief from the trial court's referral order. At his request, the Board stayed its proceeding while Reed's mandamus petition was pending.

A divided court of appeals denied mandamus relief. 725 S.W.3d 716, 717 (Tex. App.—Houston [1st Dist.] 2024). Noting first that “Reed does not challenge the [Board]’s expertise,” the majority concluded, without substantive analysis, that the trial court did not clearly abuse its discretion. Id. The dissenting justice would have granted relief. In his view, the Board “is a rate-setting body, and it does not have jurisdiction to determine common-carrier status for tort liability under FELA.” 2024 WL 5248555, at *1 (Tex. App.—Houston [1st Dist.] Dec. 31, 2024) (Kelly, J., dissenting from denial of rehearing).

II. Discussion

Mandamus relief is appropriate if (1) a trial court clearly abuses its discretion and (2) there is no adequate appellate remedy. In re Ill. Nat'l Ins. Co., 685 S.W.3d 826, 834 (Tex. 2024). “An error of law or erroneous application of law to fact is an abuse of discretion.” In re Kay, 715 S.W.3d 747, 750 (Tex. 2025). Here, Reed assails an order referring to an administrative agency the question of Rail Link's status as a “common carrier by railroad” under FELA. We conclude the trial court clearly abused its discretion in issuing the referral order and Reed lacks an adequate remedy by appeal.

A. The trial court clearly abused its discretion by referring the question of Rail Link's common-carrier status to the Board.

As “statutory creatures of the Legislature with no inherent authority of their own,” Harris Cnty. Appraisal Dist. v. Tex. Workforce Comm'n, 519 S.W.3d 113, 130 (Tex. 2017), administrative agencies have “only those powers expressly conferred and necessary to accomplish [their] duties,” In re CenterPoint Energy Hou. Elec., LLC, 629 S.W.3d 149, 156 (Tex. 2021) (quoting Oncor Elec. Delivery Co. v. Chaparral Energy, LLC, 546 S.W.3d 133, 138 (Tex. 2018)). “[T]here is no presumption that administrative agencies are authorized to resolve disputes.” Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002). Rather, “[w]e presume that district courts are authorized to resolve disputes unless the Constitution or other law conveys exclusive jurisdiction on another court or administrative agency.” In re Sw. Bell Tel. Co., 235 S.W.3d 619, 624 (Tex. 2007); see Tex. Const. art. V, § 8. An agency's adjudicative jurisdiction may be either concurrent or exclusive, but in either case, that jurisdiction must be clearly established by the legislative body that created it. See Univ. of Tex. Rio Grande Valley v. Oteka, 715 S.W.3d 734, 739 (Tex. 2025). These principles apply equally to federal agencies created by Congress. See Nat'l Fed'n of Indep. Bus. v. Dep't of Lab., Occupational Safety & Health Admin., 595 U.S. 109, 117, 142 S.Ct. 661, 211 L.Ed.2d 448 (2022) (“Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided.”).

Exclusive jurisdiction arises when “the Legislature has granted [an] agency the sole authority to make an initial determination in a dispute,” In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004), or when “a pervasive regulatory scheme indicates that the Legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed,” Sw. Bell Tel., 235 S.W.3d at 624–25. In such a case, until a party exhausts all administrative remedies, “the trial court lacks subject-matter jurisdiction and must dismiss the claims within the agency's exclusive jurisdiction.” Forest Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 428 (Tex. 2017). No party here contends that the Board has exclusive jurisdiction.

Instead, the parties frame the issue as one of primary jurisdiction—“an administrative law doctrine that arises when a court and an agency have concurrent original jurisdiction over a dispute.” Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 18 (Tex. 2000) (emphasis added). The primary jurisdiction doctrine was first developed by the U.S. Supreme Court in Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907). Formally adopted into Texas law in 1950,³ the doctrine “operates to allocate power between courts and agencies when both have authority to make initial determinations in a dispute.” Subaru, 84 S.W.3d at 221. When particular issues underlying the dispute “have been placed within the special competence of an administrative body[,] ․ the judicial process is suspended pending referral of such issues to the administrative body for its views.” United States v. W. Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161 (1956). Our Court has explained that, when the doctrine applies, trial courts “should abate the lawsuit and suspend finally adjudicating the claim until the agency has an opportunity to act on the matter.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 208 (Tex. 2002). Provided the agency has the necessary authority, we have said that deference is appropriate “when: (1) [the] agency is typically staffed with experts trained in handling the complex problems in the agency's purview; and (2) great benefit is derived from [the] agency's uniformly interpreting its laws, rules, and regulations, whereas courts and juries may reach different results under similar fact situations.” Subaru, 84 S.W.3d at 221. Importantly, the primary jurisdiction doctrine presumes that the agency has been granted authority to exercise adjudicative power alongside a court. Absent an express grant of concurrent jurisdiction to an agency, there is no shared power to allocate because the adjudicative power remains exclusively in courts.

Reed argues that we should abrogate, or at least narrow, the primary jurisdiction doctrine. In his view, after the U.S. Supreme Court's decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 144 S.Ct. 2244, 219 L.Ed.2d 832 (2024),⁴ the primary jurisdiction doctrine is too broad and wrongly permits Texas courts to delegate judicial power to administrative agencies. We need not revisit the contours of Texas's primary jurisdiction doctrine post-Loper Bright, however, because we discern no basis for the trial court's conclusion that the Board has concurrent jurisdiction to make the judicial determination the parties put to the trial court. Without a clear grant of concurrent jurisdiction authorizing the agency to adjudicate the dispute, the primary jurisdiction doctrine simply does not come into play, and a court may not confer adjudicative power on the agency as the trial court did here.⁵

Whatever benefits may be derived from an administrative agency's input, a court seeking to refer a judicial determination to that agency under the primary jurisdiction doctrine must first confirm the basis for the agency's concurrent jurisdiction over the question in dispute. If the agency “is powerless to grant the relief sought and has no authority to make incidental findings which are essential to the granting of the relief,” the doctrine does not apply and no referral may be made. Foree v. Crown Cent. Petrol. Corp., 431 S.W.2d 312, 316 (Tex. 1968). Each of this Court's primary-jurisdiction-doctrine cases involved agencies to which our Legislature clearly afforded some authority over the relevant question in dispute—either the power to issue findings necessary to resolve the disputed question or the power to resolve the dispute entirely.⁶

The applicability of the primary jurisdiction doctrine is a question we review de novo. Subaru, 84 S.W.3d at 222. As explained below, none of the statutes cited by the parties or the trial court clearly confer authority on the Board to determine whether an entity qualifies as a common carrier by railroad under FELA. The trial court thus abused its discretion when it invoked the primary jurisdiction doctrine and referred that question to the Board.

1. The Board's enabling legislation does not clearly authorize the Board to determine Rail Link's common-carrier status under FELA.

The natural starting point in locating an agency's authority to resolve a dispute is the legislation that creates and empowers it. Congress first established the Board and gave it authority in ICCTA. See Pub. L. No. 104-88, 109 Stat. 803 (1995) (codified at 49 U.S.C. §§ 10101–16106).⁷ That statute gives the Board exclusive jurisdiction over “(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules ․, practices, routes, services, and facilities of such carriers; and (2) the construction, acquisition, operation, abandonment, or discontinuance of ․ tracks, or facilities.” 49 U.S.C. § 10501(b). ICCTA has been described as granting the Board “exclusive jurisdiction to regulate certain economic and operational aspects of rail transportation,” Horton v. Kan. City S. Ry. Co., 692 S.W.3d 112, 150 (Tex. 2024) (Busby, J., concurring), and ensuring that the Board is the leading authority for laws that “directly attempt to manage or govern a railroad's decisions in the economic realm,” Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 807 (5th Cir. 2011).⁸

Rail Link asserts that a determination of its common-carrier status under FELA falls within this general grant of jurisdiction because “the Board has jurisdiction over transportation by rail carrier,” 49 U.S.C. § 10501(a)(1), and the statute's definition of “rail carrier” incorporates the concept of a “common carrier,” see id. § 10102(5) (defining “rail carrier” as “a person providing common carrier railroad transportation for compensation”). In Rail Link's view, the Board thus has jurisdiction to adjudicate common-carrier status for all purposes. We disagree. We cannot infer that the Board has power to determine whether Rail Link is a common carrier for purposes of FELA merely because the term “common carrier” also appears in a statute over which the Board does exercise jurisdiction. See Subaru, 84 S.W.3d at 220 (“Courts will not imply additional authority to agencies, nor may agencies create for themselves any excess powers.”). Such a power is not “reasonably necessary to fulfill [the Board's] express functions or duties.” Pub. Util. Comm'n v. City Pub. Serv. Bd., 53 S.W.3d 310, 316 (Tex. 2001). Cloaking the Board with adjudicatory jurisdiction over any common-carrier determination regardless of context would impermissibly permit it to “exercise what is effectively a new power ․ on the theory that such a power is expedient for administrative purposes.” Id.

Although Congress afforded the Board adjudicatory jurisdiction over disputes involving railroad rates, the Board's enabling statute does not clearly establish that its jurisdiction includes the FELA dispute at issue here. Throughout the statute, Congress specifically described the types of adjudicatory disputes over which the Board may exercise jurisdiction. For example, the Board is tasked with “determining whether a rate established by a rail carrier is reasonable,” 49 U.S.C. § 10701(d)(2), and resolving complaints challenging the reasonableness of a rail carrier's rate, see id. § 10704. In doing so, the Board is expressly authorized to determine whether that carrier has “market dominance,” a defined term. Id. § 10707. The Board is also empowered to conduct proceedings on applications to construct and operate (or abandon) railroad lines, id. §§ 10901, 10903, and to require the sale of a railroad line after making requisite findings, id. § 10907(b)(1).

The Board may also investigate—either on its own or in response to a complaint—whether a “violation” of ICCTA has occurred. See id. §§ 11701(a) (granting the Board authority to investigate and find “a violation of this part”), 11702 (granting the Board authority to file a civil action to enjoin licensing violations, enforce limitations on entity combinations, and enforce its own orders), 11704 (providing remedies for a “violation of this part”). And the statute authorizes the Board to prescribe regulations and obtain information from rail carriers, including by subpoena or deposition, to carry out ICCTA's provisions. See id. § 1321. Absent from these express grants of adjudicative authority is any clear indication that Congress intended to provide the Board with sweeping power to determine common-carrier status for all purposes or, more precisely, under FELA.

Rail Link points to examples of the Board's having previously determined whether a railroad is a common carrier. Rail Link contends these examples establish the Board's jurisdiction to determine Rail Link's common-carrier status in this case. But in each example Rail Link cites, the Board made its determination in the context of a dispute the Board is expressly authorized by statute to resolve. See, e.g., Louisville & Jefferson Cnty. Riverport Auth., No. FD 36463, 2021 WL 4940260, at *4 (S.T.B. Oct. 22, 2021) (determining that an entity was not operating as a common carrier and thus rejecting a complaint that the entity was illegally operating without the Board's authorization).⁹ And even the cited examples in which a court referred the common-carrier question (as opposed to proceedings that originated with the Board) involved disputes clearly falling within the Board's jurisdiction. See Chlorine Inst., Inc. v. Soo Line R.R., 792 F.3d 903, 909 n.5, 910–13 (8th Cir. 2015) (affirming a referral to the Board to determine whether a railroad's requirement for transporting hazardous materials satisfied its common-carrier obligations under [ICCTA] § 11101 when “[n]either party dispute[d] both the district court and the STB have jurisdiction to address Appellants’ § 11101 claim”); Pejepscot Indus. Park, Inc. v. Me. Cent. R.R. Co., 215 F.3d 195, 205–06 (1st Cir. 2000) (concluding that referral was proper for the question of whether certain actions violated ICCTA when a claim for that violation could be adjudicated by a district court or the Board); Finch Paper LLC, No. FD 35981, 2016 WL 547716, at *1 (S.T.B. Feb. 11, 2016) (accepting a referral from the district court to issue a declaratory order regarding whether “certain practices ․ are unreasonable practices in violation of [ICCTA] §§ 10702 and 10746”). At best, these proceedings establish that the Board may have authority to make a finding on common-carrier status when necessary to resolve a dispute under ICCTA or otherwise within the Board's jurisdiction. But we discern no clear grant of jurisdiction to adjudicate common-carrier status generally or FELA claims in particular.

Rail Link also cites cases in which courts deciding FELA cases have considered the Board's views of whether an entity is a common carrier. See Gomez v. H&M Int'l Transp., Inc., No. 17-CV-231, 2021 WL 236596, at *4 n.5, *7 n.9 (D.N.J. Jan. 25, 2021) (noting that an entity's status as a rail carrier under ICCTA may be relevant to whether it is a common carrier by railroad for purposes of FELA but declining to defer to the Board's interpretation of ICCTA, which is “a different statute from FELA”); Johnson v. Decatur Junction Ry., Co., No. 11-CV-1400, 2014 WL 1282285, at *2 (C.D. Ill. Mar. 28, 2014) (using the absence of the Board's authorization to operate a railroad as one piece of evidence in determining an entity's common-carrier status under FELA); see also Lone Star Steel Co. v. McGee, 380 F.2d 640, 642, 648–49 (5th Cir. 1967) (noting that the Interstate Commerce Commission, the Board's predecessor, did not assume jurisdiction over an entity's railroad equipment but concluding that the entity was, in fact, a common carrier under FELA). But the fact that courts determining common-carrier status under FELA have considered the Board's determinations regarding common-carrier status under ICCTA does not equate to a clear grant of jurisdiction to the Board over FELA disputes.

This is not to say that the Board's opinion on whether Rail Link is a common carrier under ICCTA is useless. The trial court could, of course, consider the Board's views regarding Rail Link's common-carrier status under ICCTA as a persuasive indicator of whether Rail Link is a common carrier under FELA. But the trial court erred when it assumed the Board's statutory powers authorized the court to refer to it the common-carrier determination under FELA. See Foree, 431 S.W.2d at 317 (rejecting a claim that a statute conferred authority on an agency to act “in a vacuum or as a mere agent of a trial court”).

2. FELA does not clearly place the common-carrier question within the Board's jurisdiction.

FELA itself likewise includes no explicit grant of jurisdiction to the Board to determine when and whether that statute applies. First enacted in 1908, FELA is “focused primarily upon injuries and death resulting from accidents on interstate railroads.” Urie v. Thompson, 337 U.S. 163, 181, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). It does not afford any power to the Board, much less the power to determine which entities fall within the statute's reach. FELA imposes liability on a “common carrier by railroad” when an employee's injuries result from the carrier's negligence. 45 U.S.C. § 51. In short, FELA “imposes on railroads the duty to use reasonable care in providing their employees a safe workplace.” Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 894 (Tex. 2016).

FELA does not define the term “common carrier,” leaving the contours of its scope to be determined by the common law. See Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165–66, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007) (“Absent express language to the contrary, the elements of a FELA claim are determined by reference to the common law.”); Nami, 498 S.W.3d at 895 (“In applying FELA, we look to the common law, not of Texas or any particular jurisdiction, but in general.”). The hands-off approach to defining the statute's reach is consistent with the rest of the statute, which departs from common-law rules “[o]nly to the extent of [FELA's] explicit statutory alterations.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 544, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). And courts, including our country's highest, have comfortably determined whether a defendant is a “common carrier” under FELA for decades.¹⁰

In other statutes, Congress has included language that clearly authorizes the Board to make certain relevant determinations with respect to those statutes. For example, the Railroad Unemployment Insurance Act expressly authorizes the Board, on an interested party's request, “to determine after hearing” whether that statute applies. 45 U.S.C. § 351(a). We must give meaning to the absence of any such grant of authority in FELA. See Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 497 (Tex. 2013) (“When the Legislature expresses its intent regarding a subject in one setting, but, as here, remains silent on that subject in another, we generally abide by the rule that such silence is intentional.”); see also In re Commitment of Bluitt, 605 S.W.3d 199, 203 (Tex. 2020) (“When interpreting statutes, we presume the Legislature chose the statute's language with care, purposefully choosing each word, while purposefully omitting words not chosen.”). FELA contains no clear grant of adjudicative power to the Board that could support the trial court's referral order in this case.

3. The statute authorizing the Board to issue declaratory orders does not clearly establish the necessary jurisdiction.

Finally, Rail Link points to the Board's statutory authority to issue declaratory orders as a basis for its jurisdiction over this dispute. The federal Administrative Procedure Act (APA) provides that an administrative agency, “in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.” 5 U.S.C. § 554(e). Agencies use this power in exercising their statutory mandates, issuing orders to: “(1) interpret the agency's governing statute or own regulations; (2) define terms of art; (3) clarify whether a matter falls within federal regulatory authority; or (4) address questions of preemption.” Emily S. Bremer, The Agency Declaratory Judgment, 78 OHIO ST. L.J. 1169, 1204 (2017); see also Burnele V. Powell, Sinners, Supplicants, and Samaritans: Agency Advice Giving in Relation to Section 554(e) of the Administrative Procedure Act, 63 N.C. L. REV. 339, 346 (1985) (“This provision was intended to allow an agency to assess the impact of its statutes and regulations in light of the particularized circumstances of an affected citizen.”).

But an agency's authority to issue declaratory orders is not—and cannot be—limitless. Section 554(e) applies only in cases of “adjudication required by statute to be determined on the record after opportunity for an agency hearing.” 5 U.S.C. § 554(a) (emphasis added). In other words, the authority to issue a declaratory order does not itself create jurisdiction; the agency must have some underlying adjudicative jurisdiction to declare something in the first instance. See Red Lion Broad. Co. v. Fed. Commc'ns Comm'n, 395 U.S. 367, 372 n.3, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) (“Since the FCC could have adjudicated these questions it could, under the [APA], have issued a declaratory order in the course of its adjudication which would have been subject to judicial review.”); see also Ill. Terminal R.R. Co. v. Interstate Com. Comm'n, 671 F.2d 1214, 1216 (8th Cir. 1982) (“Of course, § 554(e) does not allow an agency to issue a declaratory order on any subject matter; there must be some underlying authority.”). Indeed, the APA itself forbids an agency from issuing any order unless it is “within [the] jurisdiction delegated to the agency and as authorized by law.” 5 U.S.C. § 558(b).

The Board cited its general statutory powers when it accepted the trial court's referral. See 49 U.S.C. § 1321. But as we explain above, the Board's powers are tied to its statutory mandate to carry out the provisions of ICCTA. See id. § 1321(a) (“Enumeration of a power of the Board in this chapter or subtitle IV does not exclude another power the Board may have in carrying out this chapter or subtitle IV [i.e., ICCTA].” (emphasis added)). There is no clear underlying authority supporting the Board's use of a declaratory order to make a judicial determination whether Rail Link is a common carrier subject to FELA liability.

* * *

“Courts are not free to outsource to [administrative agencies] the authority to adjudicate common-law questions and factual disputes properly decided by judges and juries.” CenterPoint Energy, 629 S.W.3d at 164. Before referring the threshold question of FELA's application to an administrative agency under the primary jurisdiction doctrine, the trial court first needed to determine that the agency had concurrent jurisdiction to make that finding. But Rail Link has not shown, and we have not found, any statute clearly authorizing the Board to resolve that question. The trial court's referral of the common-carrier determination to the Board was thus an abuse of discretion. See In re UMTH Gen. Servs., L.P., 725 S.W.3d 424, 432 n.45 (Tex. 2025) (“Trial courts have ‘no “discretion” in determining what the law is or applying the law to the facts.’ ” (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004))).¹¹

B. Reed lacks an adequate remedy by appeal.

To be entitled to relief, Reed must also show that he has no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). “We determine whether an adequate appellate remedy exists by weighing the benefits of mandamus review against the detriments.” In re Acad., Ltd., 625 S.W.3d 19, 32 (Tex. 2021). The risk of significant waste of economic and judicial resources and the potential harm to the separation of powers if the referral order stands both lead us to conclude that Reed has made the necessary showing here.

Although “[c]ourts do not issue relief merely to avoid some ‘expense or delay’ associated with appellate relief,” we are inclined to grant relief “when an appeal would amount to an ‘irreversible waste of judicial and public resources.’ ” UMTH Gen. Servs., 725 S.W.3d at 432 (quoting Prudential, 148 S.W.3d at 137). As with a trial court's erroneous exercise of jurisdiction, an agency's unlawful exercise of jurisdiction over a dispute “necessarily costs ‘private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’ ” In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 299 (Tex. 2016) (quoting Prudential, 148 S.W.3d at 136). Baseless referrals harm the judicial system, “injecting inefficiency by enabling forum-shopping, wasting judicial resources, delaying adjudication on the merits, and skewing settlement dynamics.” Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 437 (Tex. 2017) (quoting In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010)). Put differently, appeal “is no remedy at all for the irreversible waste of judicial and public resources that would be required here if mandamus does not issue.” In re Masonite Corp., 997 S.W.2d 194, 198 (Tex. 1999).

We are also cognizant that the referral order threatens the separation of powers. “[W]e have granted mandamus relief to halt trial court proceedings that run counter to an administrative agency's exclusive jurisdiction,” In re Oncor Elec. Delivery Co., 630 S.W.3d 40, 44 (Tex. 2021), reasoning that our inaction would “disrupt the orderly processes of government,” Sw. Bell Tel., 235 S.W.3d at 624, and amount to “judicial appropriation of state agency authority,” Entergy, 142 S.W.3d at 321. This logic cuts the other way too. See Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978) (noting that court intervention is permissible “when an agency is exercising authority beyond its statutorily conferred powers”); see also City of Sherman v. Pub. Util. Comm'n, 643 S.W.2d 681, 686 (Tex. 1983) (affirming an injunction to prevent an agency from acting beyond its authority). For all these reasons, we conclude that Reed lacks an adequate remedy by appeal.

III. Conclusion

The trial court clearly abused its discretion when it invoked the primary jurisdiction doctrine to refer the issue of Rail Link's common-carrier status under FELA to the Surface Transportation Board without first confirming that a clear statutory grant of authority permits the Board to resolve the question. We conditionally grant mandamus relief and direct the trial court to vacate its referral order. We are confident the trial court will comply, and the writ will issue only if it does not.

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, 27 S.Ct. 350, 51 L.Ed. 553 (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 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, 27 S.Ct. 350 (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, 27 S.Ct. 350. 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, 27 S.Ct. 350. 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, 33 S.Ct. 916, 57 L.Ed. 1472 (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 ICC's core regulatory authority. See, e.g., N. Pac. Ry. Co. v. Solum, 247 U.S. 477, 484, 38 S.Ct. 550, 62 L.Ed. 1221 (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, 48 S.Ct. 342, 72 L.Ed. 664 (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, 59 S.Ct. 754, 83 L.Ed. 1147 (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, 59 S.Ct. 754 (citing U.S. Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408 (1932) (Shipping Board), and Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (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, 52 S.Ct. 247. 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, 52 S.Ct. 247. Accordingly, courts could 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, 52 S.Ct. 247.

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, 77 S.Ct. 161, 1 L.Ed.2d 126 (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, 113 S.Ct. 1213, 122 L.Ed.2d 604 (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 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, 119 S.Ct. 292, 142 L.Ed.2d 242 (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, 93 S.Ct. 573, 34 L.Ed.2d 525 (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, 123 S.Ct. 1855, 155 L.Ed.2d 889 (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). 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.

162 Tex. 26, 344 S.W.2d 411, 412 (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 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 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 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, 65 S.Ct. 161, 89 L.Ed. 124 (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 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, 144 S.Ct. 2244 (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, 144 S.Ct. 2117, 219 L.Ed.2d 650 (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 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.

As the Court correctly holds, Congress hasn't empowered the U.S. Surface Transportation Board to determine Rail Link, Inc.’s status as a common carrier under the Federal Employers’ Liability Act. Ante at –––– – ––––. But even if Congress had done so, I still wouldn't refer this case to the STB. We've never used the primary-jurisdiction doctrine to refer a case to a federal agency, only to state agencies. I wouldn't start now.

The U.S. Supreme Court invented the primary-jurisdiction doctrine as “one of those creative judicial labors whereby modern administrative law is being developed as part of our traditional system of law.” Far E. Conf. v. United States, 342 U.S. 570, 575, 72 S.Ct. 492, 96 L.Ed. 576 (1952). As with other judicially created doctrines, “[n]o fixed formula exists for applying the doctrine of primary jurisdiction.” United States v. W. Pac. R.R., 352 U.S. 59, 64, 77 S.Ct. 161 (1956). Instead, a federal court will ask “whether preliminary reference of issues to the agency will promote that proper working relationship between court and agency that the primary jurisdiction doctrine seeks to facilitate.” Pharm. Rsch. & Mfrs. of Am. v. Walsh, 538 U.S. 644, 673, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003) (Breyer, J., concurring in part). If the agency-expertise vibes check out, then the court will “stay[ ] further proceedings so as to give the parties reasonable opportunity to seek an administrative ruling.” Reiter v. Cooper, 507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). The primary-jurisdiction doctrine thus “allows a court to refer an issue to an agency that knows more about the issue, even if the agency hasn't been given exclusive jurisdiction to resolve it.” Arsberry v. Illinois, 244 F.3d 558, 563 (7th Cir. 2001) (Posner, J.).

We've borrowed this judicial innovation from the federal courts. See, e.g., Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 18–19 (Tex. 2000) (citing W. Pac. R.R., 352 U.S. at 63–65, 77 S.Ct. 161); Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 414 (1961) (citing Kavanaugh v. Underwriters Life Ins., 231 S.W.2d 753, 755–56 (Tex. Civ. App.—Waco 1950, writ ref'd) (citing Tex. & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907))). In Texas, therefore, “[t]he judicially created primary jurisdiction doctrine operates to allocate power between courts and agencies when both have authority to make initial determinations in a dispute.” Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002) (citing Foree v. Crown Cent. Petrol. Corp., 431 S.W.2d 312, 316 (Tex. 1968)). In such cases, the doctrine “requires trial courts to 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.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 208 (Tex. 2002). Unless, of course, the plaintiff's claims are “inherently judicial in nature”—whatever that means. Forest Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 430 (Tex. 2017) (quoting Amarillo Oil Co. v. Energy-Agri Prods., Inc., 794 S.W.2d 20, 26 (Tex. 1990)).

I'd be open to revisiting Texas's primary-jurisdiction doctrine in an appropriate case, because it doesn't “appear to be rooted in positive law, like a statute or a constitution.” Smith v. Hi-Tech Pharms., Inc., 317 Ga. 14, 891 S.E.2d 923, 926 (2023) (Pinson, J., concurring in the denial of certiorari). And I certainly wouldn't extend the primary-jurisdiction doctrine beyond the cases in which this Court has applied it, all of which referred issues to state agencies rather than federal agencies. See, e.g., In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403–04 (Tex. 2007) (Public Utility Commission of Texas); Butnaru, 84 S.W.3d at 208–09 (Texas Motor Vehicle Board); Kavanaugh, 231 S.W.2d at 756 (Texas Board of Insurance Commissioners). “The first rule of holes, according to an old saying, is to stop digging.” Lightspeed Media Corp. v. Smith, 761 F.3d 699, 702 (7th Cir. 2014).

FOOTNOTES

1.   Reed also sued a number of other parties. But the order at issue in this proceeding concerns only Rail Link.

2.   The relevant section of FELA provides:Every common carrier by railroad while engaging in [interstate or foreign] commerce ․ shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ․ for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier ․45 U.S.C. § 51. Although liability under FELA is expressly limited to a “common carrier by railroad,” that term is undefined in the statute. But see id. § 57 (expanding the term “common carrier” to include persons or entities responsible for managing and operating a common carrier's business).

3.   See Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 414 (1961) (noting that the Court “gave its approval to the application of the doctrine of primary jurisdiction” in Kavanaugh v. Underwriters Life Insurance Co., 231 S.W.2d 753 (Tex. App.—Waco 1950, writ ref'd)); see also Ferreira v. Butler, 575 S.W.3d 331, 335 n.29 (Tex. 2019) (noting that, since 1927, the Court's refusal of an application for writ of error or petition for review gives the court of appeals’ opinion “the precedential value of one of our own”).

4.   In Loper Bright, the Supreme Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which had obliged courts to defer to administrative agencies on the proper interpretation of certain statutes. Loper Bright, 603 U.S. at 412–13, 144 S.Ct. 2244.

5.   Another reason this case is not a suitable vehicle for the Court to reconsider Texas's primary jurisdiction doctrine is that it involves a referral to a federal agency to determine the proper application of a federal statute. An examination of whether Texas's primary jurisdiction doctrine should be narrowed is better left for a case in which a Texas court refers a dispute to a Texas agency based on the Texas Legislature's grant of concurrent jurisdiction.

6.   See, e.g., Forest Oil, 518 S.W.3d at 429–30 (explaining that the Natural Resources Code authorized the Railroad Commission to “make determinations with respect to,” and remedy, contamination claims); In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (noting that the Public Utility Commission “retain[ed] authority to interpret and enforce the interconnection agreements” in dispute); Butnaru, 84 S.W.3d at 208–09 (explaining that the Legislature “specifically authorized the [Motor Vehicle] Board to resolve disputes” alleging a violation of the Motor Vehicle Commission Code, which formed the basis of the tort claim); Cash Am. Int'l, 35 S.W.3d at 16–18 (confirming that the Consumer Credit Commissioner had authority to resolve disputes over lost goods under the Pawnshop Act).

7.   Congress later amended various portions of ICCTA and established the Board as an independent agency, removing it from the U.S. Department of Transportation's ambit. See Surface Transportation Board Reauthorization Act of 2015, Pub. L. No. 114-110, 129 Stat. 2228.

8.   That the Board's jurisdiction does not encompass tort-liability questions is demonstrated by the fact that, as one court observed, jurisdiction over “railroad safety” belongs not to the Board but to a different agency—the Federal Railroad Administration. Bos. & Me. Corp. v. Surface Transp. Bd., 364 F.3d 318, 321 (D.C. Cir. 2004). We have also recognized that the Federal Rail Safety Act “delegates rail-safety regulation to the federal Secretary of Transportation, not to the Surface Transportation Board.” Horton, 692 S.W.3d at 122.

9.   See also Rail-Term Corp., No. FD 35582, 2014 WL 7405858, at *1–2 (S.T.B. Dec. 30, 2014) (explaining a previous order finding an entity was a rail carrier under [ICCTA] § 10102(5) for purposes of determining whether the entity was an “employer” under the Railroad Retirement Act, which defines “employer” with reference to the Board's jurisdiction); Honey Creek R.R., Inc., No. AB-865X, 2008 WL 2271465, at *7 (S.T.B. June 4, 2008) (concluding that an entity “became a rail carrier and assumed common carrier obligations,” making its abandonment of a rail line subject to the Board's authority); Greenville Cnty. Econ. Dev. Corp., No. FD 34487, 2005 WL 1767438, at *3 (S.T.B. July 27, 2005) (concluding that the Board “has primary jurisdiction to determine whether a railroad's common carrier obligation has been met” pursuant to [ICCTA] § 10501(b)(2)).

10.   See, e.g., Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187, 41 S.Ct. 93, 65 L.Ed. 205 (1920) (defining “common carrier by railroad” as used in FELA to mean “one who operates a railroad as a means of carrying for the public”); Lone Star Steel, 380 F.2d at 647 (enumerating “various considerations [that] are of prime importance in determining whether a particular entity is a common carrier”); Flores v. Coffield Warehouse Co., 683 S.W.2d 31, 33 (Tex. App.—Texarkana 1984, no writ) (concluding that the defendant was “not a common carrier by railroad” and thus not liable under FELA).

11.   Even if the Court were to assume the Board has concurrent jurisdiction to decide whether Rail Link is a common carrier under FELA, the referral would be improper because it fails the first prong of the two-part test for determining whether referral under the primary jurisdiction doctrine is proper. See Subaru, 84 S.W.3d at 221. Federal and Texas courts regularly decide—and have for decades—whether an entity meets FELA's definition of “common carrier.” See, e.g., Wells Fargo, 254 U.S. at 187, 41 S.Ct. 93; Lone Star Steel, 380 F.2d at 647; Flores, 683 S.W.2d at 33. Rail Link has not demonstrated that the Board has any particular expertise in adjudicating tort liability under FELA.

Justice Huddle delivered the opinion of the Court.

Justice Young filed a concurring opinion, in which Justice Hawkins joined. Justice Sullivan filed a concurring opinion, in which Justice Busby and Justice Hawkins joined.