Ripe for Reconsideration?
Precedents that justices on the Court have indicated should be challenged
As I’ve noted before, concurring opinions at the Texas Supreme Court are on the rise. And as my friend and fellow SCOTX observer Adam Shniderman has also pointed out, the justices often use these concurring opinions to signal disagreement with various precedents. In fact, there have been many instances in the past few terms where one or more members of the Court have essentially invited litigants to challenge precedent in a future case.
To my knowledge, however, these invitations have not been catalogued in an accessible way. Lest they go unanswered or overlooked, I thought it useful to start the process of identifying them here. So in what I suspect will be a reoccurring (albeit highly irregular) post, Ripe for Reconsideration will note and compile separate opinions in which one or more of the justices suggests that a precedent or issue should be reconsidered in a future case.
Caveat: This post undoubtedly suffers from a recency bias. My knowledge of the Court does not reach as far back as it ought to, and time constraints prevent a deeper dive into the caselaw. So in the event I have missed any relevant opinion, past or present, please let me know, and I can update accordingly.
In 23-0755, In re State Farm Mutual Automobile Insurance, Justice Sullivan, in his first written opinion and joined by Chief Justice Blacklock and Justices Devine and Young, suggested in a concurrence that he was willing to reconsider Brainard v. Trinity Universal Insurance Co., 216 S.W.3d 809, 818 (Tex. 2006), in which the Court held that an underinsured motorist carrier “is under no contractual duty to pay benefits until the insured obtains a judgment establishing the liability and underinsured status of the other motorist.”
Relevant language: “But there will be plenty more occasions for head-scratching over Brainard. Indeed, such a recurring drain on scarce judicial resources seems like a real problem. Perhaps in one of those cases, the parties will join issue on whether Brainard should be overruled.”
See also Maj. Op. at 8 n.21: “In a post-submission letter, Lindsey cites a recent concurring opinion from the Second Court of Appeals inviting the Court to revisit Brainard. See In re Progressive Cnty. Mut. Ins. Co., No. 02-25-00039-CV, 2025 WL 450707, at *2 (Tex. App.—Fort Worth Feb. 10, 2025, orig. proceeding [mand. denied]) (Birdwell, J., concurring) (op. filed Mar. 20, 2025). We decline the invitation to do so here because (1) Lindsey did not request in either her briefing or at oral argument that we overrule Brainard and (2) her letter fails to address any of the considerations relevant to overruling precedent.”
In 23-0247, Pitts v. Rivas, Justice Huddle, joined by Justices Lehrmann, Bland, and Young, questioned in a concurring opinion whether the Court should continue recognizing “informal” fiduciary relationships.
Relevant language: “[T]he concept our cases describe as an ‘informal’ fiduciary relationship is a fiction we should no longer entertain.”
See also Maj. Op. at 16 n.9 (“If a party questioned that precedent or if the outcome of the case turned on the precedent’s continuing vitality, we might have occasion to decide whether we share the concurring Justices’ view. Because we have not considered whether to overturn or revise our precedent, nothing in this opinion should be taken as reaffirming or agreeing with it.”).
In 23-0273, Accident Fund Insurance Company v. Texas Department of Insurance, Justice Young, joined by Justice Sullivan, wrote in an opinion concurring in the denial of a petition for review that it was likely time to reconsider agency deference in statutory interpretation, especially now in light of the U.S. Supreme Court’s decision in Loper Bright.
Relevant language: “Administrative agencies in Texas have seemingly never enjoyed the deference once endorsed by the U.S. Supreme Court, see Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), although our cases have occasionally hinted that “the analysis in which we engage is similar,” R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 625 (Tex. 2011). If ever there were a time to transform similarity into sameness (a doubtful proposition all along in this context), it is certainly not now, when the Supreme Court has decidedly abandoned Chevron as “fundamentally misguided.” See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 407 (2024). In a future case challenging a specific award of supplemental income benefits, then, this Court could (and should) assess critically an agency’s power to rewrite, under the guise of interpretation, the statutory criteria that limit benefits awards.”
In 22-0940, Texas Tech. University v. Flores, Justice Blacklock, joined by Justice Young, suggested in a concurring opinion that Texas courts should not strictly adhere to the McDonnell Douglas burden-shifting framework for employment-discrimination claims. Justice Young also filed a separate concurring opinion, expressly inviting litigants to help determine whether McDonnell Douglas is consistent with Texas law.
Relevant language from Justice Blacklock’s opinion: “I see no basis for this elaborate formula in the text of the Texas Labor Code. McDonnell Douglas dates to a time when courts were often less attentive to statutory text—and more attentive to perceived statutory purpose—than are most courts today, including this Court.”
Relevant language from Justice Young’s opinion: “Reexamination may confirm the propriety of accepting into our law the McDonnell Douglas framework (or something much like it) and its progeny—or perhaps not. If not, it strikes me as at best unclear how a variety of doctrines, including stare decisis and liquidation, may affect our response. The analysis is worth undertaking if a case presents the question.”
In 22-1143, Henry S. Miller Commercial Company v. Newsom, Justice Young, joined by Justice Bland, questioned in a concurring opinion whether it would be worth heightening the burden of proof for legal-malpractice cases that have been assigned and therefore may involve “side-switching”:
Relevant language: “[I]t may be worthwhile to examine the standard of proof in a future case, especially if petitioner’s warnings about the consequences of not barring this case from proceeding prove prescient.”
In 21-0470, Collin Creek Assisted Living Center v. Faber, Justice Young, joined by Justice Blacklock, wrote in a concurring opinion that there may be a better way of determining whether a claim qualifies as a “health care liability claim” under the Texas Medical Liability Act and said that it may be time to reconsider the factors under Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015).
Relevant language: “[T]his Court could convert its reliance on factors into clearer rules. Stare decisis strikes me as posing less of an obstacle here than it otherwise might because our factor-laden HCLC jurisprudence may have “become[] less useful over time” as it “continues to generate confusion among parties and the judiciary” about the statutory definition. . . . I hope that a future case will give us the opportunity to reconsider our framework for determining when a claim qualifies as an HCLC.”
In 21-0307, City of League City v. Jimmy Changas, Justice Young, in a solo concurrence, expressed misgivings regarding the Court’s precedents applying the four Wasson factors and the Tort Claims Act to determine whether a city is entitled to immunity for breach-of-contract claims.
Relevant language: “Those cases, as the Court today ably explains, require us to determine whether a municipality’s challenged action was either governmental or proprietary. In making that determination, we are supposed to ask (1) whether the classifications listed in § 101.0215(a) of the Texas Civil Practice & Remedies Code provide any “guidance,” and if not, (2) whether the action otherwise meets the common-law definition of “governmental function,” as expounded through the four Wasson factors. No party has asked us to reassess our prior decisions, and I agree with the Court that, under the rather meandering process that those precedents compel, League City has failed to show that its contract with Jimmy Changas satisfies either inquiry.
But see Justice Blacklock’s dissenting opinion, joined by Justice Bland: “I agree with much of Justice Young’s thoughtful concurrence. The “Wasson factors” employed by the Court to distinguish between the governmental and proprietary functions of a municipality have proven unsuited for their task. In addition, we should abandon the fiction that the Tort Claims Act’s rambling list of governmental functions tells us anything about how to determine whether common law immunity applies to a contract claim. And it may very well be, as Justice Young suggests, that when a government accepts performance under a commercial contract and then refuses to pay, the government has committed a compensable taking. I cannot join my colleague’s concurrence, however, because I conclude that running a Chapter 380 tax-incentive grant program is a governmental rather than a proprietary function.”
In 21-0769, Horton v. The Kansas City Southern Railway Company, Justice Busby, joined by Justices Devine, Blacklock, and Young, criticized the notion of “implied obstacle preemption,” insofar as it requires courts to determine whether the plaintiffs’s claim would present an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). This sort of inquiry, Justice Busby wrote, cannot be squared with the original meaning of the Supremacy Clause.
Relevant language: “Because this case painfully illustrates the failures of implied obstacle preemption’s ‘ambitious,’ abstract, and ahistorical’ approach to what is one of the ‘most frequently used doctrine[s] of constitutional law in practice,’ I write separately to urge the Supreme Court to reconsider Hines and its progeny.”
In 20-0366, Elephant Insurance v. Kenyon, Justice Young, joined by Justice Blacklock, wrote in a concurrence that it may be time to reconsider the so-called Phillips factors when determining whether a tort duty exists, particularly in highly reticulated areas of the law.
Relevant language: “The Court’s clear and well-written opinion faithfully and accurately applies our precedents regarding the judiciary’s role in creating new duties under the tort of negligence. . . . I write separately to suggest that, in a proper case, we should reconsider those precedents. . . . I will end by noting that our precedents that ask us to assess social, economic, political and other considerations are less hoary than we might think. The Court here relies on Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017) and Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004). These cases rely on the factors found in Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) and Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). . . . In an appropriate case . . . I would welcome the Court’s reexamination of how we approach the question of new tort duties, at least in highly regulated and very familiar contexts.
See also 21-0496, Houston Area Safety Council v. Mendez (Young, J., concurring) (joined by Blacklock, J.) (“[T]he Court today adheres to our precedents by applying the Phillips factors. But at least for a case like this, we should not need those factors. Drug testing is a familiar area of life and law that, in many respects, is already highly regulated. Judicial meddling with the careful balances that the other branches can strike and have struck is unnecessary and improper.”)
See also also Daniel Rankin, Of Crowns and Common Law, Tex. Rev. L. Pol’y (2024) (discussing Justice Young’s concurrence and offering points and counterpoints to common lawmaking in highly regulated areas of the law).
But see Justice Boyd’s dissenting opinion in Mendez, joined by Justices Lehrmann and Devine: “It remains true today that, because our society and its standards are constantly changing, the common law is not frozen or stagnant, but evolving, and it is the duty of this court to recognize the evolution.”).
I don’t pretend to have created an exhaustive list of opinions in which the justices have identified precedent ripe for overruling, so I again invite anyone to remind me of anything I’ve missed. But I hope it can at least provide a good starting place for anyone looking to accept an invitation to challenge one of the Court’s precedents. Whether an eventual challenge results in an overruling or a reaffirming, the law may be better for it.