Supreme Court of Texas
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No. 21-0496
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Houston Area Safety Council, Inc. and
Psychemedics Corporation,
Petitioners,
v.
Guillermo M. Mendez,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the First District of Texas
═══════════════════════════════════════
JUSTICE BOYD, joined by Justice Lehrmann and Justice Devine,
dissenting.
To its credit, this Court does not take lightly a request to
recognize a common-law duty. For the most part, at least in recent years,
we have viewed the common law as sufficiently developed to address
those circumstances in which parties owe legal duties to each other and
those in which they don’t. See, e.g., Elephant Ins. Co. v. Kenyon, 644
S.W.3d 137, 150–51 (Tex. 2022); Pagayon v. Exxon Mobil Corp., 536
S.W.3d 499, 507–08 (Tex. 2017). Yet we have not rejected our
longstanding recognition that “changing social standards and increasing
complexities of human relationships in today’s society” may “justify
imposing a duty” the common law has not previously imposed. Otis
Eng’g Corp. v. Clark, 668 S.W.2d 307, 310 (Tex. 1983). 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.” El Chico Corp. v.
Poole, 732 S.W.2d 306, 310 (Tex. 1987) (citing Otis Eng’g, 668 S.W.2d at
310); see also Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 457 (Tex.
2012) (Willett, J., concurring) (“[W]e are called upon to reevaluate
common-law rules, giving deference to stare decisis when warranted,
but departing when the prior rule no longer furthers the interests of
efficiency, fairness, and legitimacy.”).
We are asked in this case whether entities an employer hires to
collect and test an employee’s biological samples for drug-testing
purposes owe a legal duty to the employee to act reasonably in the
performance of those limited services. As the Court explains, we have
not previously addressed this question. 1 To ensure consistency,
1 Ante at ___. We held in SmithKline Beecham Corp. v. Doe, 903 S.W.2d
347 (Tex. 1995), that an independent drug-testing laboratory did not owe “a
person tested a duty to tell that person or the employer that ingestion of certain
substances will cause a positive test result,” id. at 348, but we expressly
“emphasiz[ed]” in that case that we were not considering “whether a drug
testing laboratory . . . has a duty to use reasonable care in performing tests
and reporting the results,” id. at 355. And we held in Mission Petroleum
Carriers, Inc. v. Solomon, 106 S.W.3d 710 (Tex. 2003), that an employer did
not owe a “duty to an at-will employee to use reasonable care when collecting
an employee’s urine sample for drug testing pursuant to DOT regulations,” id.
at 710, but we again emphasized that the question of whether a third-party
entity that collects employees’ samples owes a duty of care to the employees
was “not before [the] Court,” id. at 711.
2
predictability, and public confidence in the law and in this Court’s role
in its development, we cannot address the issue by relying on our own
personal, subjective views of whether a particular party should face the
possibility of liability in particular circumstances, or even of what the
law “should” be. Instead, our analysis must adhere to well-established
considerations that have long guided and constrained this Court’s role
as guardian of the common law.
The parties here agree we should focus on such well-established
considerations in this case, specifically—as explained below—on (1) the
social, economic, and political questions the proposed duty presents, and
(2) the laws and policies not only of this State, but of other states and of
the United States. Guillermo Mendez, who urges us to recognize the
proposed duty, does not argue that we have previously recognized the
duty or that the duty falls within some general negligence duty owed by
all. The Houston Area Safety Council and Psychemedics, who oppose the
proposed duty, do not argue that we should abandon or revisit those
well-established considerations. 2 The Court thus properly limits its
analysis to the arguments the parties have presented. But because I
conclude the analysis necessarily leads directly to a recognition of the
common-law duty proposed in this case, I must respectfully dissent.
2 In the trial court, the Safety Council and Psychemedics argued that
Mendez could not establish any of the elements of a negligence claim: duty,
breach, causation, or damages. The trial court granted summary judgment
only on the ground that Petitioners did not owe Mendez a legal duty. The court
of appeals held that Petitioners did owe Mendez a duty, and it remanded the
case to the trial court without addressing breach, causation, or damages. See
634 S.W.3d 154, 163 (Tex. App.—Houston [1st Dist.] 2021). I too would address
only the duty question and leave it to the trial court to consider the other
elements in the first instance on remand.
3
A. Social, economic, and political concerns
Our precedent first requires us to “weigh the ‘social, economic,
and political questions and their application to the facts at hand’ to
determine whether a duty exists and what it is.” Elephant Ins., 644
S.W.3d at 145 (quoting Humble Sand & Gravel v. Gomez, 146 S.W.3d
170, 182 (Tex. 2004)). We do this by considering several factors—
commonly referred to as the Phillips factors 3—balancing “the risk,
foreseeability, and likelihood of injury” against the “social utility of the
actor’s conduct, the magnitude of the burden of guarding against the
injury, the consequences of placing the burden on the defendant,” and
considering “whether one party would generally have superior
knowledge of the risk or a right to control the actor who caused the
harm.” Id. (quoting Humble Sand & Gravel, 146 S.W.3d at 182). 4 In this
case, these factors weigh heavily in favor of recognizing the duty Mendez
proposes.
1. Risk of injury
As the Court concedes, we have previously recognized the “serious
risk that an employee can be harmed by a false positive drug test.” Ante
at ___ (quoting Mission Petroleum, 106 S.W.3d at 714–15). Other state
supreme courts around the country have recognized it as well. See, e.g.,
3 See Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.
1990).
See also Pagayon, 536 S.W.3d at 504; Nabors Drilling, U.S.A., Inc. v.
4
Escoto, 288 S.W.3d 401, 410 (Tex. 2009); New Tex. Auto Auction Servs., L.P. v.
Gomez De Hernandez, 249 S.W.3d 400, 406 (Tex. 2008); Golden Spread
Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 289–90
(Tex. 1996); Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993); Phillips, 801
S.W.2d at 525.
4
Shaw v. Psychemedics Corp., 826 S.E.2d 281, 284 (S.C. 2019) (noting
that the “risk is especially great in at-will [employment] states”);
Landon v. Kroll Lab’y Specialists, Inc., 999 N.E.2d 1121, 1122 (N.Y.
2013) (noting the “profound, potentially life-altering, consequences” of
the drug-testing company’s actions); Berry v. Nat’l Med. Servs., Inc., 257
P.3d 287, 291 (Kan. 2011) (observing that “inaccurately reported test
results can have dire consequences on the livelihood of individuals”);
Duncan v. Afton, Inc., 991 P.2d 739, 745 (Wyo. 1999) (noting the testing
company “is aware that the likely effect of a false positive result is
significant and devastating”). Indeed, as the Court explains, Mendez
testified that he was barred from the jobsite after his positive test
results, and a second positive result would prevent him from working in
his profession at all. Ante at ___. 5
The Court concludes, however, that—similar to the U.S.
Department of Transportation regulations that applied to the trucking-
company employer in Mission Petroleum—Petitioners’ internal
procedures and licensing and certification requirements substantially
mitigate the risks, and even make them “essentially non-existent.” Ante
at ___ (describing Psychemedics’ chain-of-custody reviews, verification
reviews, opportunities to explain positive results and take a second test,
5The Safety Council and Psychemedics contend that the positive result
of Mendez’s first test could not have caused Mendez to lose his job at
Turnaround Welding Services because he quickly retested negative and
completed other requirements, and Turnaround’s decision not to reassign
Mendez to Valero or another job site cannot be attributed to the initial positive
test result. This argument, however, addresses the issue of whether
Petitioners’ conduct proximately caused Mendez’s alleged damages, not
whether they owed Mendez a legal duty.
5
and washing and testing procedures, which governmental agencies
“have evaluated and approved”).
In the most important respects, however, Petitioners have not
shown that their procedures provide the kinds of protections we
considered important in Mission Petroleum. There we noted not only
that federal DOT regulations (as opposed to the entities’ own internal
procedures) required the types of protections the Court recites, but also
that they grant employees the right to complain and initiate
administrative proceedings to challenge those procedures. Mission
Petroleum, 106 S.W.3d at 714–15. Importantly, we noted that the DOT
regulations grant the Federal Highway Administration authority to
investigate alleged violations, “compel compliance, assess civil
penalties, or both,” and “fashion relief to the complainant and ‘assure
that the complainant is not subject to harassment, intimidation,
disciplinary action, discrimination, or financial loss’ for having filed the
complaint.” Id. at 714 (quoting 49 C.F.R. § 386.12). These remedies, we
concluded, sufficiently enable employees to “protect themselves from
harm,” without merely relying on the employer to comply with its
internal procedures. Id.
Unlike the employer in Mission Petroleum, the Safety Council and
Psychemedics have not pointed us to any governmental or external
regulatory scheme that provides meaningful remedies on which
employees may rely to prevent and mitigate the harm that foreseeably
occurs when a drug-collection or drug-testing company negligently fails
to comply with its internal procedures or regulatory mandates. And as
we noted in Mission Petroleum, “[w]ithout these protections, the risk of
6
harm resulting from a negligently conducted urinalysis test would be
great.” Id. at 715. Because those protections do not exist for those whose
samples are collected and tested by third parties, rather than a DOT-
regulated employer, this factor weighs heavily in favor of recognizing
the proposed duty.
2. Foreseeability and likelihood of injury
The Court merely “assume[s] that there is a significant likelihood
that Petitioners could and did foresee the injury” Mendez suffered as a
result of his positive drug test. Ante at ___. As its subsequent discussion
reveals, however, we need not rely on an assumption to reach that
conclusion. The specimen-custody-and-control form and the test-results
report confirm that the Safety Council and Psychemedics knew that
Mendez was being tested for employment purposes, so they cannot
dispute that they could foresee that a positive test would cause Mendez
economic harm. Like the risk factor, the foreseeability factor, which we
have described as the “foremost and dominant consideration,” Phillips,
801 S.W.2d at 525 (quoting Poole, 732 S.W.2d at 311), weighs heavily in
favor of recognizing the proposed duty.
3. Social utility of drug testing
We must next balance the substantial risk, foreseeability, and
likelihood of injury against the social utility of the Petitioners’ services.
See Elephant Ins., 644 S.W.3d at 145. I agree with the Court that
“[t]here is great social utility in drug testing employees, particularly
those engaged in occupations that present substantial dangers to
themselves, other employees, property, and the public.” Ante at ___. But
the value of drug testing is only as great as the accuracy and reliability
7
of the tests’ results. As the South Carolina Supreme Court has observed,
the “significant public interest” is “in ensuring accurate drug tests
because countless employees are required to undergo drug testing as a
condition of their employment.” Shaw, 826 S.E.2d at 283 (emphases
added). Because the social utility of employee drug testing is only as
significant as the accuracy of that testing, this factor bears little weight
against the recognition of a duty to act reasonably to ensure such
accuracy.
4. Burden and consequences
In addition to the social utility, we must also consider the burden
Petitioners would bear to guard against the foreseeable injury and the
consequences of placing that burden on them. See Elephant Ins., 644
S.W.3d at 145. The Court concludes that the burden and consequences
would be great because Petitioners “contend” that recognition of the
duty “will produce a flood of frivolous and burdensome claims against
[third-party facilities] for every employee who receives a positive test
result,” leading them to insist on indemnity agreements with their
customers, increase their prices, or cease drug testing altogether. Ante
at ___.
I agree we must carefully consider such consequences and give
them great weight when they in fact exist. But Petitioners have failed
to provide any evidence to support these contentions. As discussed
below, several other states have recognized the proposed duty for
twenty-odd years, and Petitioners have not suggested that any
significant burden or parade of horribles has in fact occurred in those
jurisdictions. Absent such evidence, we can only assume that Petitioners
8
and others like them have been able to comply with the duty of “ordinary
care” in these other states, and they have offered no argument that they
have faced a barrage of frivolous claims in those states.
Psychemedics, in fact, vigorously contends that Mendez’s
proposed duty is completely unnecessary because its testing procedures
are essentially infallible, “there are no false positives with hair testing,”
it has “never had a false positive,” and in over nine million tests, an error
has “never happened.” But accepting the truth of these contentions, our
recognition of the proposed duty will impose no more than a minimal
burden because Psychemedics will never breach the duty. Psychemedics
expresses fear that the duty’s mere existence will produce a wave of
frivolous and burdensome claims, but our laws provide substantial
protections, disincentives, and remedies against such claims.
The Court also accepts Petitioners’ suggestion that recognizing
the proposed duty would “erode the at-will employment doctrine”
because, “[i]f third-party entities can be liable for negligently collecting
and testing employee drug samples, then employers who themselves
collect or test such samples will ultimately face the same liabilities.”
Ante at ___. But we already addressed that issue in Mission Petroleum,
refusing to recognize the duty as to employers who collect or test their
own employees’ drug samples, in part because the duty could undermine
Texas’s fundamental at-will-employment doctrine because the
employee’s claim concerned “the process by which [his employer] chose
to terminate him.” 106 S.W.3d at 715. 6 Even if we were to someday
Relatedly, the Court also contends that recognizing a duty in this case
6
would be inconsistent with Texas law because, in the context of defamation
9
reconsider that reasoning (which no one here argues we should), our
decision would (or, at least, should) be the result of our careful
consideration of the well-established fundamental principles that
govern our analysis, not a “consequence” of our decision in this
distinguishable case.
5. Superior knowledge of risk and right to control
Our analysis of the social, economic, and political questions also
requires us to consider which of the parties has superior knowledge of
the risks and a superior ability to control those whose conduct may
create those risks. See Elephant Ins., 644 S.W.3d at 145. Undoubtedly,
claims, “Texas law recognizes a ‘qualified privilege’ that ‘protects a former
employer’s statements about a former employee to a prospective employer.’”
Ante at ___ (quoting Smith v. Holley, 827 S.W.2d 433, 436 (Tex. App.—San
Antonio 1992, writ denied)). Setting aside the Court’s conflation of legal duties
and privileges, the privilege on which the Court relies exists to protect the free-
speech rights of those who may be responsible for the “honest communication
of misinformation,” not the free-conduct rights of those whose affirmative
actions cause the information to be incorrect. Pioneer Concrete of Tex., Inc. v.
Allen, 858 S.W.2d 47, 50 (Tex. App.—Houston [14th Dist.] 1993, writ denied)
(quoting Kaplan v. Goodfried, 497 S.W.2d 101, 105 (Tex. App.—Dallas 1973,
no writ). The privilege might provide a proper analogy if Mendez were suing
the Safety Council and Psychemedics for falsely communicating that Mendez
had tested positive for drugs, but that of course is not Mendez’s claim.
According to Psychemedics, Mendez in fact did test positive for drugs, but
according to Mendez, he did so only because the Safety Council negligently
collected his sample or Psychemedics negligently performed the test. Texas law
has never recognized a qualified privilege to protect against negligent conduct
in any similar circumstances. Nor does the Court’s reliance on the economic-
loss rule justify its reasoning in this case. See ante at ___ (citing LAN/STV v.
Martin K. Eby Constr. Co., 435 S.W.3d 234 (Tex. 2014)). The lost wages Mendez
seeks to recover constitute losses directly resulting from injury to him
personally, not a “standalone economic loss” that resulted from “bodily harm
to another or from physical damage to property in which he has no proprietary
interest.” LAN/STV, 435 S.W.3d at 238–39.
10
Petitioners have far more knowledge of the specimen-collection
and -testing processes than the employees whose specimens are
collected and tested, and they are in a far better position to ensure that
they act reasonably and use ordinary care when they engage in such
activities. See Landon, 999 N.E.2d at 1124 (“The laboratory is . . . in the
best position to prevent false positive results.”).
The Court finds it relevant, however, that Petitioners have no
control over how an employer responds to a positive drug test and thus
have no control over the harm the employee suffers as a result of that
test. See ante at ___. But this concern relates to the question of whether
a third-party company’s negligent handling of an employee’s sample
proximately caused the employee’s harm—an issue we do not address in
this case. Of course, there “may be more than one proximate cause of an
injury,” and “a defendant’s act or omission need not be the sole cause of
an injury, as long as it is a substantial factor in bringing about the
injury.” Bustamante v. Ponte, 529 S.W.3d 447, 457 (Tex. 2017). Even if
an employer’s reaction to a false-positive drug test is a proximate cause
of the employee’s injury, any negligent conduct by an outside entity that
produced the false positive also proximately caused the injury. The fact
that the outside entity’s negligence may not be the sole proximate cause
does not weigh against recognition of a duty to protect against such
negligence.
The Court also suggests that entities like Petitioners lack
knowledge or control because they have no “direct relationship with an
employee whose samples they collect and test.” Ante at ___; see Mission
Petroleum, 106 S.W.3d at 710–11 (noting that Texas courts had rejected
11
a laboratory’s duty of care because “drug-testing companies have a direct
relationship only with the employer and not the employee”). But we have
never required any contractual or other privity as a prerequisite to a
negligence duty, and we may recognize such a duty under the Phillips
factors even in the absence of a previously recognized “special
relationship.” See Golden Spread Council, 926 S.W.2d at 292. An entity
that collects or tests a client’s employees’ drug-test samples undeniably
has a direct relationship with the samples themselves, and the duty
Mendez proposes derives only from that relationship. Mendez does not
propose a duty to the employee beyond the duty to act reasonably with
regard to the entity’s relationship with the employee’s drug-testing
sample.
In sum, I conclude that entities like Petitioners have superior
knowledge of the risks and control over those whose conduct may create
such risks. This factor, along with the significant risk, foreseeability,
and likelihood of injury, substantially outweighs the impact that
recognition of the proposed duty would have on the social utility of drug
testing and the burdens and consequences the duty would place on such
entities.
B. Decisions of other jurisdictions
When deciding whether to recognize a common-law duty we also
“take into account not only the law and policies of this State, but the law
of other states and the United States, and the views of respected and
authoritative restatements and commentators.” SmithKline, 903 S.W.2d
at 351. The Court correctly observes that some “[l]ower courts around
the country have split over the issue of whether third-party companies
12
owe a common-law duty to their clients’ employees to use reasonable
care in collecting and testing their drug-testing samples.” Ante at ___.
But it ignores the fact that the “overwhelming majority” of courts that
have addressed the issue have recognized such a duty, reflecting an
“overall trend” throughout our nation’s courts. See Quisenberry v.
Compass Vision, Inc., 618 F. Supp. 2d 1223, 1228 (S.D. Cal. 2007)
(collecting cases); see also Cooper v. Lab’y Corp. of Am. Holdings, Inc.,
150 F.3d 376, 379–80 (4th Cir. 1998) (same).
This is particularly true when we consider decisions of the state
courts of last resort. Only five of the highest state courts have addressed
the issue—South Carolina, New York, Kansas, Pennsylvania, and
Wyoming—but all of them have recognized the proposed duty’s existence
under common-law negligence principles. See Shaw, 826 S.E.2d at 282
(holding that under South Carolina law “a drug testing laboratory that
has a contract with an employer to conduct and evaluate drug tests
owe[s] a duty of care to the employees who are subject to the testing so
as to give rise to a cause of action for negligence for failure to properly
and accurately perform the test and report the results”); Landon, 999
N.E.2d at 1124 (holding that under New York law a testing laboratory
owed a negligence duty to a probationer who was required to participate
in drug testing as a condition of probation); Berry, 257 P.3d at 291
(holding that under Kansas law companies that collected and tested
urine samples owed a negligence duty to an employee who provided
sample); Sharpe v. St. Luke’s Hosp., 821 A.2d 1215, 1221 (Pa. 2003)
(holding under Pennsylvania law that a hospital that collected drug-
testing samples under contract with an employer owed a negligence duty
13
to an employee who submitted samples); Duncan, 991 P.2d at 740
(holding that a Wyoming company hired by the employer to collect urine
samples from employees owed a negligence duty to employees “when
collecting, handling, and processing urine specimens for the purpose of
performing substance abuse testing”).
As the Court notes, shortly before we issued our decision in
SmithKline, the United States Court of Appeals for the Fifth Circuit
held that, under Texas law, an independent laboratory did owe a “duty
to testees to use reasonable care in conducting its tests.” Willis v. Roche
Biomed. Lab’ys, Inc., 21 F.3d 1368, 1372 (5th Cir. 1994), opinion
withdrawn and superseded, 61 F.3d 313 (5th Cir. 1995). In making that
“Erie guess,” the court relied primarily on the Texas court of appeals’
decision in SmithKline, despite the fact that SmithKline involved a
proposed duty to warn against ingesting poppy seeds and not a proposed
duty to use reasonable care in conducting the tests, and (as we noted in
our decision in SmithKline) despite the fact that we had already granted
review of the Texas court of appeals’ decision in that case. See id. at
1372–73.
After we decided SmithKline, however, the Fifth Circuit panel
withdrew its opinion and changed its holding. See Willis v. Roche
Biomed. Lab’ys, Inc., 61 F.3d 313, 313 (5th Cir. 1995). In its new opinion,
the panel made an Erie guess that, under Texas law, a laboratory does
not owe a legal duty “to persons tested to perform its services with
reasonable care.” Id. at 316. The court acknowledged our recognition in
SmithKline that “some jurisdictions had held that a laboratory owes a
duty to persons tested to perform its services with reasonable care,” and
14
that we distinguished those decisions “from the failure to warn claims”
at issue in SmithKline. Id. Nevertheless, the panel concluded that our
opinion in SmithKline “seemed to question the soundness of the
decisions finding such a duty,” particularly by making “unfavorable
references” to the panel’s original decision. Id. at 316 & n.2 (emphasis
added). Although we had emphasized in SmithKline that we were not
addressing “whether a drug testing laboratory . . . has a duty to use
reasonable care in performing tests and reporting the results,” 903
S.W.2d at 355, the Fifth Circuit panel nevertheless relied on our opinion
to conclude that, under Texas law, the laboratory owed the employee “no
duty of reasonable care in testing his urine for drugs,” Willis, 61 F.3d at
316.
As a result, the Fifth Circuit and its district courts have followed
Willis’s holding, repeating that, under Texas law, an independent
laboratory does not have a legal duty to a person whose specimens are
tested to exercise reasonable care when conducting those tests. See, e.g.,
Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 730 (5th Cir. 2002);
Brownlow v. Lab’y Corp. of Am., 254 F.3d 1081, 1081 (5th Cir. 2001);
Martinez v. DISA, Inc., 435 F. Supp. 3d 747, 753 (W.D. Tex. 2020); Hinds
v. Baker Hughes, Inc., No. MO-06-CV-134, 2007 WL 9710941, at *3
(W.D. Tex. Sept. 28, 2007); Frank v. Delta Airlines, Inc., No. CIV.A. 3:00-
CV-2772, 2001 WL 910386, at *2 (N.D. Tex. Aug. 3, 2001). All of these
courts, however, simply followed Willis, which in turn relied solely on
SmithKline, which did not address the issue; and none of them
considered the Phillips factors or conducted any other analysis of the
policy issues underlying their holdings.
15
Although the Court does not perceive a national “consensus” on
the issue, ante at ___, the decisions of our sister states’ highest courts
reflect the “changing social standards and increasing complexities of
human relationships in today’s society” that “justify imposing” the duty
Mendez proposes. Otis Eng’g, 668 S.W.2d at 310. And, I must
respectfully (yet regretfully) add, they reflect a far deeper analysis of the
issue than the cursory review this Court applies today.
Conclusion
This Court has “consistently made changes in the common law of
torts as the need arose in a changing society.” Poole, 732 S.W.2d at 311.
When prevailing norms favor a change in the law, it is this Court’s duty
to recognize the tidal shift. See Sanchez v. Schindler, 651 S.W.2d 249,
251–52 (Tex. 1983) (stating that the Court should, “in light of present
social realities,” reconsider policy and “act in response to the needs of a
modern society”). In the absence of protections of substantial statutory
or regulatory schemes, employees subject to employment-related drug
testing have no protection against negligently produced false positives.
Applying our well-established guiding principles, I would hold that
third-party entities that collect and test samples submitted by those
employees owe the employees a common-law duty to act reasonably with
regard to their handling of the samples. Because I would affirm the court
of appeals’ judgment and remand the case to the trial court for further
proceedings, I respectfully dissent.
Jeffrey S. Boyd
Justice
16
OPINION FILED: June 23, 2023
17