In re Demaree Reed, Relator
No. 25-0149
Supreme Court of Texas
June 19, 2026
Argued February 12, 2026
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.
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
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
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
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.” ___ S.W.3d ___, 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
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
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 (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 (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
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 (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
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
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
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,”
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,”
The Board may also investigate—either on its own or in response to a complaint—whether a “violation” of ICCTA has occurred. See
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
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
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
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 (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 (1994). And courts, including our country‘s highest, have comfortably determined whether a defendant is a “common carrier” under FELA for decades.10
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.”
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.”
The Board cited its general statutory powers when it accepted the trial court‘s referral. See
* * *
“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
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.
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.
Rebeca A. Huddle
Justice
OPINION DELIVERED: June 19, 2026
Notes
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 . . . .