In re Demaree Reed, No. 25-0149 (Tex.)

On June 19, 2026, the Texas Supreme Court issued an important decision limiting the doctrine of “primary jurisdiction” in Texas, ruling in favor of Beck Redden’s client.  In Texas, the doctrine of primary jurisdiction traditionally applies when both a court and an administrative agency have concurrent original jurisdiction over a dispute and relying on the expertise of the agency to determine a matter in dispute would maintain uniformity in application of the laws administered by the agency; in such cases, a court may refer the matter to the agency for a non-binding decision in the first instance, which the court may then consider when adjudicating the underlying claim.

Our client suffered a serious injury when he fell from a moving railcar.  He sued his employer under the Federal Employers’ Liability Act (FELA), which imposes liability on common carriers by railroad.  The defendant denied that it was a common carrier for purposes of FELA, and after the trial court denied a motion for summary judgment on that basis, the defendant asked the court to abate the litigation and refer the question of common carrier status to the Surface Transportation Board (STB)—a federal agency that exercises regulatory jurisdiction over a variety of economic matters affecting common carriers.  The trial court did so under the doctrine of primary jurisdiction, reasoning that the STB had both concurrent jurisdiction over the common carrier question and specialized expertise in determining whether railroads are common carriers.

Our client’s trial counsel challenged the referral order in the Houston court of appeals, which upheld it, after which our client’s counsel sought review in the Texas Supreme Court.  After the briefing was completed and the Court had granted review, our client’s counsel engaged Beck Redden partner Russell Post to present the oral argument.  At argument, the strategy focused on whether the STB had concurrent jurisdiction over the central issue: whether the defendant was a common carrier for purposes of FELA.  The oral argument presented a synthesis of all Texas Supreme Court decisions applying the primary jurisdiction doctrine and demonstrated that the essential prerequisite for a finding of concurrent jurisdiction is agency jurisdiction to either grant relief in the dispute between the parties or make findings essential to such relief in support of the agency’s authorized powers.  The Supreme Court agreed that “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.”  The Court found that the STB had no such power in the present case, and held that “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.”

The case is In re Demaree Reed, No. 25-0149, in the Supreme Court of Texas.