Texas Supreme Court Addresses the Political Question Doctrine

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Cory D. Halliburton

Cory D. Halliburton



Cory Halliburton serves as general counsel and business adviser to a nationwide nonprofit / tax-exempt client base, as well as for multi-state professional service companies. He is a results-oriented attorney, with executive-level strategy and an understanding of the intersection of law and business judgment. With a practical upbringing, he pushes for process-driven results in internal governance, strategy and compliance with employment law, and complex or unique contracts and business relationships.

He dedicated the first ten years of his practice to mainly commercial litigation matters in West Texas and the Dallas-Fort Worth Metroplex. During that experience, Mr. Halliburton transitioned his practice to a more general counsel role, with an emphasis on nonprofit and tax-exempt organizations, advising those organizations through formation, dissolution, litigation, governance, leadership succession, employment law, contracts, intellectual property, tax exemption issues, policy creation, mergers and other. He has served as borrower’s counsel for tax-exempt bond and loan transactions near $100 million aggregate; some with complex pre-issue construction, debt payoff and other debt financing challenges.

Mr. Halliburton also serves as outside legal and business advisor for executive professionals in multi-state engineering firms, with a focus on drafting and counsel on significant service agreements, employment law matters, and protection of trade secrets.

[T]he Texas Constitution expressly enshrines the separation of powers as a fundamental principle of limited government. Accordingly, under our own Constitution, Texas state courts decline to exercise jurisdiction over questions committed to the executive and legislative branches. ” Preston v. M1 Support Services, L.P., No. 20-0270, __ S.W.3d __ (Tex. Jan. 21, 2022) at pg. 8 (“Preston”).

On January 21, 2022, the Texas Supreme Court issued its opinion in Preston where the court addressed the political question doctrine. In Preston, a Texas-based private contractor, M1 Support Services, L.P. (“M1”), maintained a fleet of Navy helicopters, one of which crashed during a training exercise, killing three servicemembers in January 2014. The families of those service members filed suit against M1, alleging negligence claims under the Death on the High Seas Act (46 U.S.C. § 30301, et. seq.) and maritime law, mainly based upon M1’s alleged faulty maintenance of the helicopter in question. Preston at pg. 3. M1 moved to dismiss, arguing “that the adjudication of this case is inextricable from judicial review of military decisions[,]” and thus, under the political question doctrine, the courts lack jurisdiction to adjudicate the matter. See id. at pg. 5. The trial court agreed and dismissed the lawsuit. The families appealed, and the court of appeals affirmed. The Texas Supreme Court granted petition for review.

Focusing on the political question doctrine, the court described the doctrine as follows:

Congress has the power to declare war and to raise and support the military, and the President is the Commander in Chief of the armed forces. Even as the Supreme Court acknowledged the judiciary’s power to determine whether actions of the political branches are lawful in Marbury v. Madison[, 5 U.S. (1 Cranch) 137, 166, 177 (1803)], it recognized the limits of this principle. When the Executive Branch acts within its constitutional discretion, “nothing can be more perfectly clear than that their acts are only politically examinable.” Thus, as a matter of separation of federal power, the Judicial Branch has declined to review military action “intended by the Constitution to be left to the political branches directly responsible . . . to the electoral process.” The political question doctrine insulates decisions constitutionally committed to the other branches from judicial second-guessing.

Preston at pg. 6-7 (internal citations omitted). The court noted that the United States Supreme Court established factors to consider when evaluating the political question doctrine, “[c]hief among them are whether there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department’ or ‘a lack of judicially discoverable and manageable standards for resolving it[.]’” Id. at pg. 7-8 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).

 In finding that the political question doctrine did not deprive the state court of jurisdiction over the case, the Texas Supreme Court stated as follows:

Texas has no established standards for resolving disputes over battlefield military housing decisions, or over the reasonableness of military aircraft maintenance schedules, but we possess manageable standards for deciding whether a private contractor complied with an individual helicopter’s maintenance plan—even if the Navy created that maintenance plan. As the Eleventh Circuit noted in rejecting the doctrine’s applicability in another plane- crash case, “[i]t is well within the competence of a federal court to apply negligence standards to a plane crash.” It is within the competence of state courts to do the same.

Preston at pg. 17 (internal citations omitted).

Essentially, the political question doctrine is premised upon constitutional constraints on the judicial branch of government to adjudicate claims that are the clear and sole responsibility of other branches of government. For example, under the political question doctrine, issues that implicate sensitive military decision-making are nonjusticiable in a court of law because those matters are intended to be the direct responsibility of other political branches of government, mainly the executive branch. Notably, the service members’ pleadings in Preston did not allege that the Navy’s instructions to M1 were deficient, and the pleadings did not implicate military strategy or judgment on their face. Id. at pg. 14.

As was argued in Preston, “military control over the details of [a] contractor’s work may implicate military decisions[,]” and thus the doctrine may preclude judicial jurisdiction over suits such as the one against M1. See Preston at pg. 13. However, “‘[o]rdinary tort suits[]’ . . . are not unquestionably committed to the political branches—even when ‘touching on military matters.’” Id. at pg. 23. As the Preston court found, “[w]hen the military’s actions do not involve military expertise or judgment, and judicial history demonstrates the existence of ‘judicially discoverable and manageable standards,’ a state court should not abstain from exercising its constitutional jurisdiction to resolve the dispute.” Id.

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