in Re Academy, Ltd. D/B/A Academy Sports + Outdoors

IN THE SUPREME COURT OF TEXAS
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No. 19-0497
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IN RE ACADEMY, LTD. D/B/A ACADEMY SPORTS + OUTDOORS, RELATOR

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ON PETITION FOR WRIT OF MANDAMUS
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Argued October 6, 2020

JUSTICE LEHRMANN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT,
JUSTICE DEVINE, JUSTICE BLACKLOCK, JUSTICE BUSBY, JUSTICE BLAND, and JUSTICE HUDDLE
joined.

JUSTICE BOYD filed a concurring opinion.

This case arises out of the 2017 Sutherland Springs church shooting. Plaintiffs, who

include victims of the shooting and their families, filed multiple suits against the retailer from

which the perpetrator purchased the weapon used in the shooting. The retailer, Academy

Sports + Outdoors (Academy), 1 sought to avail itself of the federal Protection of Lawful

Commerce in Arms Act (PLCAA), which Congress passed to protect firearm retailers and

manufacturers from certain lawsuits seeking damages arising out of the criminal conduct of third

parties. Academy moved for summary judgment under the PLCAA, but the trial court denied the

motion. After unsuccessfully seeking mandamus relief in the court of appeals, Academy filed a

1
The named defendant in the suits is Academy, Ltd. d/b/a Academy Sports + Outdoors.
petition for writ of mandamus in this Court, arguing that the PLCAA requires dismissal of the

underlying suits and that Academy lacks an adequate remedy by appeal. We hold that the

PLCAA bars the lawsuits and protects Academy from continued participation in litigation.

Accordingly, we conditionally grant Academy’s petition for writ of mandamus.

I. Background

On November 5, 2017, Devin Kelley entered First Baptist Church in Sutherland Springs

wielding a Model 8500 Ruger AR-556 semi-automatic rifle fitted with a detachable thirty-round

magazine. 2 He killed twenty-six people and injured twenty more. Kelley had purchased the

rifle, which was packaged with a thirty-round magazine manufactured by Magpul Industries

Corp., from an Academy store in San Antonio on April 7, 2016. As part of that sales transaction,

Kelley purchased an additional Magpul thirty-round magazine, sold separately. Kelley reported

a Colorado address and presented a Colorado ID when buying the rifle, prompting certain

requirements imposed by the federal Gun Control Act on the sale of a firearm to an out-of-state

resident. See 18 U.S.C. § 922(b)(3) (prohibiting such a sale unless “the transferee meets in

person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully

comply with the legal conditions of sale in both such States”). Academy properly processed the

required ATF Form 4473, which Kelley completed under penalty of perjury at the time of sale. 3

2
A magazine “generally attaches to a firearm and holds ammunition that will be fed into the chamber when
the firearm is used.” United States v. Gonzalez, 792 F.3d 534, 536 n.1 (5th Cir. 2015). It eliminates the need to
manually load a cartridge into the chamber each time the weapon is fired and “greatly enhances the capabilities of
the firearm.” Id. at 536.
3
ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) Form 4473, entitled “Firearms Transaction
Record,” is used to determine whether a potential buyer may lawfully own a gun. Abramski v. United States, 573
U.S. 169, 173 (2014).

2
 Academy also ran the required background check on Kelley through the National Instant

Criminal Background Check System. Although federal law disqualified Kelley from purchasing

a firearm at the time of the sale—based in part on his conviction in a 2012 court-martial for

assaulting his wife and stepson and his dishonorable discharge from the United States Air

Force—that disqualifying information was not in the system, which authorized Academy to

“Proceed” with the sale. Litigation against the Air Force for failing to collect, handle, and report

the required information is ongoing in federal court. See Holcombe v. United States, 388 F.

Supp. 3d 777, 785 (W.D. Tex. 2019).

The mandamus proceeding at issue here arises from four lawsuits filed against Academy

in Texas district court by some of the survivors of the shooting and relatives of those killed. 4 In

all four suits, which were consolidated for pretrial matters, the plaintiffs assert claims for

negligence; negligent hiring, training, and/or supervision; negligent entrustment; and gross

negligence. The claims stem from Academy’s sale of the Ruger AR-556 rifle and thirty-round

magazine to Kelley, a Colorado resident. The plaintiffs allege that under the Gun Control Act,

the “sale, delivery, and receipt” of the weapon must have fully complied with the laws of both

Texas (the state of the sale) and Colorado (the state where the purchaser resided). 18 U.S.C.

§ 922(b)(3). The plaintiffs further allege that, because Colorado law prohibits the sale or

possession of magazines with a capacity of fifteen rounds or more (hereafter, large-capacity

magazines), COLO. REV. STAT. §§ 18-12-301, -302, the rifle–magazine package that Kelley

4
The four suits include Ward v. Academy, Ltd., No. 2017-CI-23341 (224th Dist. Ct., Bexar County, Tex.
Dec. 13, 2017); Solis v. Academy, Ltd., No. 2018-CI-14368 (438th Dist. Ct., Bexar County, Tex. Aug. 3, 2018);
Braden v. Academy, Ltd., No. 2018-CI-23302 (408th Dist. Ct., Bexar County, Tex. Dec. 11, 2018); and McMahan v.
Academy, Ltd., No. 2018-CI-23299 (285th Dist. Ct., Bexar County, Tex. Dec. 11, 2018). The suits collectively
involve sixteen plaintiffs.

3
purchased could not legally be sold in Colorado. And because the sale to Kelley violated

Colorado law, plaintiffs allege, the sale in turn violated the Gun Control Act.

Academy answered with a general denial. Academy also affirmatively asserts in its

answer, among other defenses, that the PLCAA bars the plaintiffs’ suits and that the sale

complied with Texas, Colorado, and federal law because (1) Academy processed the required

federal forms and conducted the required background check, which Kelley passed; (2) the

Academy employees involved in the sale to Kelley observed no behavior that would disqualify

him from purchasing a firearm; (3) the Gun Control Act’s restrictions on sales to out-of-state

residents apply to the sale of a firearm, not the sale of a magazine; and (4) the Colorado law at

issue does not apply to sales outside Colorado.

Academy filed a traditional motion for summary judgment on the ground that the

PLCAA, which generally prohibits a “qualified civil liability action”—that is, an action against a

seller or manufacturer of firearms and related products for damages caused by a third party’s

criminal conduct—forecloses the plaintiffs’ suits and compels their dismissal. 15 U.S.C.

§§ 7902(a) (“A qualified civil liability action may not be brought in any Federal or State court.”),

7903(5)(A) (defining “qualified civil liability action”). Although the PLCAA contains several

enumerated exceptions to that general prohibition, Academy asserted that none of those

exceptions apply and that the PLCAA grants it immunity from the plaintiffs’ suits. In response,

the plaintiffs argued that two of the PLCAA’s exceptions—for (1) actions against a seller for

negligent entrustment and (2) actions involving a seller’s knowing violation of a law applicable

to the product’s sale—apply and allow the lawsuits to proceed. Id. § 7903(5)(A)(ii), (iii).

4
 The trial court held a hearing and denied Academy’s motion for summary judgment.

Academy moved for a permissive interlocutory appeal of the order, but the trial court denied that

motion. See TEX. CIV. PRAC. & REM. CODE § 51.014(d) (authorizing a trial court to permit an

appeal from an otherwise unappealable order if certain conditions are met). Academy then filed

a petition for writ of mandamus in the court of appeals, which denied the petition without

substantive discussion. Academy now seeks mandamus relief in this Court. 5

II. Discussion

Mandamus relief is an extraordinary remedy requiring the relator to show that (1) the trial

court clearly abused its discretion and (2) the relator lacks an adequate remedy on appeal. In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36, 138 (Tex. 2004) (orig. proceeding). We

examine each prong in turn.

A. Abuse of Discretion

A trial court abuses its discretion when it acts with disregard of guiding rules or

principles or when it acts in an arbitrary or unreasonable manner. In re Garza, 544 S.W.3d 836,

840 (Tex. 2018) (orig. proceeding). A trial court’s “failure to analyze or apply the law correctly

is an abuse of discretion.” In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex.

2001) (orig. proceeding) (citation omitted). Here, the propriety of the trial court’s order denying

Academy’s summary-judgment motion hinges on a legal issue: the proper interpretation and

application of the PLCAA. See Lockheed Martin Corp. v. Hegar, 601 S.W.3d 769, 774 (Tex.

2020) (reiterating that statutory interpretation is an issue of law).

5
Amicus briefs were submitted by the Texas Civil Justice League, Mr. Stephen Willeford, the National
Shooting Sports Foundation, and the State of Texas.

5
 In analyzing federal statutes, we apply principles substantially similar to those that

govern our interpretation of Texas law. “The starting point in discerning congressional intent is

the existing statutory text.” Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004); see also Silguero v.

CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019) (explaining that our goal in interpreting a

statute is to effectuate legislative intent and that our most reliable guide is the statute’s text). We

enforce a statute according to its plain language unless doing so would lead to an absurd result.

Lamie, 540 U.S. at 534; Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 46 (Tex. 2015). We

consider statutes as a whole, reading the chosen words “in their context and with a view to their

place in the overall statutory scheme.” Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809

(1989); see also Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013). We thus begin our analysis

by reviewing the structure of the PLCAA and its exceptions before turning to the applicability of

the exceptions themselves. 6

1. The PLCAA

In enacting the PLCAA in 2005, Congress expressly enumerated its underlying findings,

including a finding that businesses “engaged in interstate and foreign commerce through the

lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms

or ammunition products . . . are not, and should not, be liable for the harm caused by those who

criminally or unlawfully misuse [such] products that function as designed and intended.” 15

U.S.C. § 7901(a)(5). Congress sought to avoid “[t]he possibility of imposing liability on an

6
Neither the United States Supreme Court nor this Court has had occasion to interpret the PLCAA. Thus,
we find guidance in the decisions of other federal and state courts but are not bound by those decisions. See Penrod
Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (“While Texas courts may certainly draw upon the
precedents of the Fifth Circuit, or any other federal or state court, in determining the appropriate federal rule of
decision, they are obligated to follow only higher Texas courts and the United States Supreme Court.”).

6
entire industry for harm that is solely caused by others.” Id. § 7901(a)(6). Relatedly, one of the

PLCAA’s stated purposes is to “prohibit causes of action against manufacturers, distributors,

dealers, and importers of firearms or ammunition products, and their trade associations, for the

harm solely caused by the criminal or unlawful misuse” of those products by a third party. Id.

§ 7901(b)(1).

To address the concerns underlying the statute’s enactment, the PLCAA prohibits, with

six exceptions, a category of civil actions against manufacturers and sellers of firearms and

ammunition products. The PLCAA’s prohibition is stated succinctly: “A qualified civil liability

action may not be brought in any Federal or State court.” Id. § 7902(a). The PLCAA further

directs courts to “immediately dismiss[]” any qualified civil liability action pending on October

26, 2005, the date of the statute’s enactment. Id. § 7902(b). “Qualified civil liability action” is

defined as:

a civil action or proceeding or an administrative proceeding brought by any
person against a manufacturer or seller of a qualified product, or a trade
association, for damages, punitive damages, injunctive or declaratory relief,
abatement, restitution, fines, or penalties, or other relief, resulting from the
criminal or unlawful misuse of a qualified product by the person or a third party.

Id. § 7903(5)(A). Thus, as relevant here, a qualified civil liability action is (1) a civil action

(2) brought by any person (3) against a seller of a qualified product (4) for damages or other

relief (5) resulting from the criminal or unlawful misuse of the product by a third party. Id. A

“qualified product” is “a firearm . . . or ammunition . . . or a component part of a firearm or

ammunition, that has been shipped or transported in interstate or foreign commerce.” Id.

§ 7903(4).

7
 It is undisputed that the Ruger AR-556 rifle and Magpul magazines that Kelley purchased

from Academy are qualified products under the PLCAA. Nor do the parties disagree that each of

the plaintiffs’ suits fits within the PLCAA’s general definition of a qualified civil liability action.

Rather, the disagreement hinges on the applicability of two of the statute’s six enumerated

exceptions to what would otherwise constitute a qualified civil liability action.

Pursuant to those two exceptions, a qualified civil liability action “shall not include . . . an

action brought against a seller for negligent entrustment” (the negligent-entrustment exception)

or “an action in which a manufacturer or seller of a qualified product knowingly violated a State

or Federal statute applicable to the sale or marketing of the product, and the violation was a

proximate cause of the harm for which relief is sought” (often referred to as the predicate

exception). Id. § 7903(5)(A)(ii), (iii). 7 We first consider the predicate exception and then

analyze the negligent-entrustment exception.

7
The other four exceptions are:
(i) an action brought against a transferor convicted under section 924(h) of title 18 [transfer of a
firearm knowing that it will be used to commit a crime of violence or drug trafficking crime], or a
comparable or identical State felony law, by a party directly harmed by the conduct of which the
transferee is so convicted;

....

(iv) an action for breach of contract or warranty in connection with the purchase of the product;
(v) an action for death, physical injuries or property damage resulting directly from a defect in
design or manufacture of the product, when used as intended or in a reasonably foreseeable
manner, except that where the discharge of the product was caused by a volitional act that
constituted a criminal offense, then such act shall be considered the sole proximate cause of any
resulting death, personal injuries or property damage; [and]
(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of
chapter 44 of title 18 [the Gun Control Act] or chapter 53 of title 26 [the National Firearms Act].
15 U.S.C. § 7903(5)(A)(i), (iv)–(vi).

8
 2. Predicate Exception

The predicate exception applies when the manufacturer or seller of a qualified product

knowingly violates a “State or Federal statute applicable to the sale or marketing of the product.”

Id. § 7903(5)(A)(iii); see Prescott v. Slide Fire Sols., LP, 410 F. Supp. 3d 1123, 1139 (D. Nev.

2019) (holding that the Nevada Deceptive Trade Practices Act qualifies as a predicate statute

under section 7903(5)(A)(iii)). The predicate statute at issue in the underlying suits is section

922(b)(3) of the federal Gun Control Act, which imposes criminal penalties for failure to comply

with its requirements regarding the sale or delivery of a firearm to an out-of-state resident. 18

U.S.C. § 922. The parties agree that section 922(b)(3) is a statute applicable to the marketing or

sale of a qualified product, but they part ways on whether Academy violated the statute such that

the PLCAA’s predicate exception allows the plaintiffs’ actions to proceed.

Section 922(b)(3) states in pertinent part:

(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed
dealer, or licensed collector to sell or deliver—

....

(3) any firearm to any person who the licensee knows or has reasonable cause
to believe does not reside in . . . the State in which the licensee’s place of
business is located, except that this paragraph . . . shall not apply to the
sale or delivery of any rifle or shotgun to a resident of a State other than a
State in which the licensee’s place of business is located if the transferee
meets in person with the transferor to accomplish the transfer, and the sale,
delivery, and receipt fully comply with the legal conditions of sale in both
such States (and any licensed manufacturer, importer or dealer shall be
presumed, for purposes of this subparagraph, in the absence of evidence to
the contrary, to have had actual knowledge of the State laws and published
ordinances of both States) . . . .

Id. § 922(b)(3). Thus, the Act places two conditions on the lawful sale of a “firearm”

(specifically, a “rifle” or “shotgun”) by a licensed dealer to an out-of-state resident: (1) the

9
transferor and transferee must meet in person “to accomplish the transfer”; and (2) the “sale,

delivery, and receipt” must “fully comply with the legal conditions of sale in both” the state of

the licensed dealer’s place of business and the state of the transferee’s residence. Id.

The plaintiffs argue that Academy’s sale of the Ruger AR-556 rifle to Kelley did not

meet the second condition, and therefore violated the Gun Control Act, because the “sale,

delivery, and receipt” of the rifle did not comply with the “legal conditions of sale” in Colorado,

Kelley’s state of residence at the time of the transaction. Id. As noted, the plaintiffs rely on

Colorado’s prohibition against the sale of large-capacity magazines and the fact that the rifle

model Kelley purchased was packaged with such a magazine to argue that the transaction could

not legally have taken place in Colorado. See COLO. REV. STAT. § 18-12-302(1). Academy

primarily responds that section 922(b)(3)’s limitations on sales to out-of-state residents apply

only to the sale of a “firearm,” which as statutorily defined does not include a magazine. See 18

U.S.C. § 921(a)(3) (defining “firearm”). Accordingly, Academy contends, the sale of the Ruger

rifle to Kelley complied with Colorado law and, in turn, with the Gun Control Act. Whether the

sale of the magazine complied with Colorado law is not relevant, Academy asserts, because the

Gun Control Act does not apply to such a sale.

As an initial matter, we note the differences in terminology that affect the scope of the

two federal statutes at issue. A “qualified civil liability action,” which the PLCAA prohibits,

includes an action against a manufacturer or seller of a “qualified product.” 15 U.S.C.

§ 7903(5)(A). A “qualified product” includes a firearm, ammunition, and a component part

thereof. Id. § 7903(4). By contrast, as the parties agree, the Gun Control Act places limitations

on the sale of a “firearm,” defined by both statutes as:

10
 (A) any weapon (including a starter gun) which will or is designed to or may
readily be converted to expel a projectile by the action of an explosive; (B) the
frame or receiver of any such weapon; (C) any firearm muffler or firearm
silencer; or (D) any destructive device. Such term does not include an antique
firearm.

18 U.S.C. § 921(a)(3); 15 U.S.C. § 7903(4) (incorporating section 921(a)(3)’s definition of

“firearm”). Unlike a “qualified product,” a “firearm” does not encompass ammunition and

includes only the weapon itself and specifically enumerated component parts: frame or receiver, 8

muffler, and silencer. 9 18 U.S.C. § 921(a)(3). A magazine is conspicuously absent from that

list. See United States v. Gonzalez, 792 F.3d 534, 537 (5th Cir. 2015) (holding that an AK-47

magazine “comports with the common meaning of ‘component’”).

The plaintiffs do not appear to dispute that a magazine, in and of itself and regardless of

its capacity, is not a “firearm” subject to the Gun Control Act’s restrictions on sales to out-of-

state residents. See United States v. Guillen-Cruz, 853 F.3d 768, 772–73 (5th Cir. 2017)

(holding that a rifle magazine does not meet the Gun Control Act’s definition of “firearm”). Nor

do they argue that Colorado law bans the sale of AR-556 rifles. Instead, they argue that because

the rifle Academy sold to Kelley was inseparably packaged with a large-capacity magazine, that

“sale” could not have occurred legally in Colorado. The plaintiffs further argue that a “firearm”

includes unlisted component parts like magazines “when they are packaged and sold together

8
Federal regulations define a “firearm frame or receiver” as “[t]hat part of a firearm which provides
housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward
portion to receive the barrel.” 27 C.F.R. § 478.11.
9
A “destructive device,” which is separately defined in the Gun Control Act, also qualifies as a “firearm”
and is not at issue here. 18 U.S.C. § 921(a)(3)(D).

11
with the weapon itself.” 10 (Emphasis omitted.) We hold that the plaintiffs’ interpretation

disregards the text and structure of both the PLCAA and the Gun Control Act, which denote a

clear distinction between the treatment of firearms (as that term is statutorily defined) and

magazines.

First, we reject the plaintiffs’ contention that the packaging of the Model 8500 rendered

the Magpul magazine part of the “firearm” that is subject to section 922(b)(3)’s restrictions. As

explained, both firearms and magazines (along with other component parts) are “qualified

products” subject to the PLCAA’s general prohibition against qualified civil liability actions, 15

U.S.C. § 7903(4), (5)(A), but only “firearms” are subject to the Gun Control Act’s restrictions on

sales to out-of-state residents, 18 U.S.C. § 922(b)(3).

To support their assertion that “the term ‘firearm’ includes those component parts

that . . . are bundled and packaged inseparably for purposes of the sale of a trigger-and-hammer

skeleton,” the plaintiffs rely on federal regulations that consider a firearm and its packaged

component parts together for the purpose of assessing and calculating taxes. See 27 C.F.R.

§ 53.61(b)(2), (b)(5)(ii). That reliance is misplaced. As used in the Gun Control Act,

“‘[f]irearm’ is a term of art” that includes some component parts but not others. United States v.

Broadnax, 601 F.3d 336, 341 (5th Cir. 2010); 18 U.S.C. § 921(a)(3) (including only a frame,

receiver, muffler, and silencer in the definition of “firearm”). Under the applicable statutory

definition, which makes no mention of packaging, a magazine simply is not a firearm. 18 U.S.C.

10
As the plaintiffs note, Academy assigns one SKU (“stock keeping unit”) number and one price to the
Model 8500 AR-556 and rang up the packaged product under one price when it was sold to Kelley.

12
§ 921(a)(3); Guillen-Cruz, 853 F.3d at 773 (“There is no definition in . . . § 921 that, on its face,

includes rifle magazines.”).

Nor can we agree with the plaintiffs’ related argument that, even if the magazine was not

part of the firearm Kelley purchased, the fact that the two were inseparably packaged means that

the overall transaction did not comply with Colorado law and thus violated the Gun Control Act.

See 18 U.S.C. § 922(b)(3) (requiring that “the sale, delivery, and receipt fully comply with the

legal conditions of sale in both” the state where the dealer’s place of business is located and the

state of the transferee’s residence). Again, the plaintiffs’ proffered interpretation strays from the

statutory text.

Section 922(b)(3)’s mandate that “the sale, delivery, and receipt” comply with state law

may not be read in a vacuum. The “sale” to which the provision refers is the “sale or delivery of

any rifle,” 11 id. (emphasis added), defined in pertinent part as “a weapon designed . . . and

intended to be fired from the shoulder and designed . . . to use the energy of an explosive to fire

only a single projectile through a rifled bore for each single pull of the trigger,” id. § 921(a)(7).

And the plaintiffs point to no applicable “legal conditions of sale” of a rifle in Colorado (as the

Gun Control Act defines “rifle”); they point only to “legal conditions of sale” of a magazine,

which does not fit within the statutory definition of “rifle” any more than it fits within the

statutory definition of “firearm.”

Indeed, although the transaction between Academy and Kelley on April 7, 2016,

encompassed the sale of two Magpul large-capacity magazines—one packaged as a stand-alone

product and one packaged with the Ruger AR-556 rifle—the plaintiffs do not contend that the

11
The provision also applies to the sale of a shotgun, which has no bearing on the issue before us.

13
sale of the stand-alone magazine along with the rifle rendered the transaction unlawful even

though it could not have taken place legally in Colorado. And the statutory text does not allow

us to treat the magazine packaged with the rifle any differently. Plaintiffs essentially seek to

rewrite section 922(b)(3) to apply to “the sale or delivery of any rifle and any bundled

component parts.” This we cannot do.

In sum, the sale of the Ruger AR-556 rifle to Kelley complied with the legal conditions

of sale in both Texas and Colorado. Because the Gun Control Act did not regulate the sale of the

magazines, the Colorado law prohibiting their sale was immaterial. 12 Accordingly, we hold that

Academy complied with section 922(b)(3) and thus committed no statutory violation that would

give rise to the PLCAA’s predicate exception. See 15 U.S.C. § 7903(5)(A)(iii).

3. Negligent-Entrustment Exception

The plaintiffs next argue that, even if the predicate exception does not apply, another

PLCAA exception entitles them to pursue their negligent-entrustment claims. Specifically, the

PLCAA excepts from its prohibition “an action brought against a seller for negligent

entrustment.” Id. § 7903(5)(A)(ii). The PLCAA defines “negligent entrustment” as:

the supplying of a qualified product by a seller for use by another person when the
seller knows, or reasonably should know, the person to whom the product is
supplied is likely to, and does, use the product in a manner involving
unreasonable risk of physical injury to the person or others.

Id. § 7903(5)(B). However, the PLCAA also provides that “no provision of this [statute] shall be

construed to create a public or private cause of action.” Id. § 7903(5)(C). Accordingly, courts

generally apply state law on negligent-entrustment claims in evaluating whether the exception

12
We need not address Academy’s alternative argument that the sale of the magazines complied with
Colorado law.

14
applies. See Prescott, 410 F. Supp. 3d at 1132–33 (noting that “[b]ecause the PLCAA does not

‘create a public or private cause of action or remedy,’ courts look to state law” in determining

whether the negligent-entrustment exception applies (internal citation omitted)); Phillips v.

Lucky Gunner, LLC, 84 F. Supp. 3d 1216, 1225 (D. Colo. 2015) (“Although the PLCAA

identifies negligent entrustment as an exception to immunity, it does not create the cause of

action. Accordingly, the claim arises under state law.” (internal citation omitted)).

Academy moved for summary judgment on the ground that Texas does not recognize a

cause of action for negligent entrustment based on the sale of property, and it argues that the

PLCAA’s negligent-entrustment exception thus does not apply. The plaintiffs disagreed, arguing

that Academy’s sale of the rifle to Kelley “satisfie[d] all the requisite elements of the tort of

negligent entrustment under Texas law” and that a genuine issue of material fact exists as to

whether Academy supplied the rifle to Kelley with reason to know that he was likely to use it in

a manner involving unreasonable risk of harm. We agree with Academy. As discussed below,

we have expressly declined to recognize a negligent-entrustment claim premised on a sale and

recently reaffirmed our agreement with the policy reasons underlying that conclusion.

Texas law on negligent entrustment developed in the context of entrustment of

automobiles, but courts have recognized the tort’s application to other types of property as well,

including firearms. See 4Front Engineered Sols. v. Rosales, 505 S.W.3d 905, 908 n.5, 909 (Tex.

2016) (citing cases, in Texas and other jurisdictions, applying the theory to “a variety of

chattel”); see also Prather v. Brandt, 981 S.W.2d 801, 806 (Tex. App.—Houston [1st Dist.]

1998, pet. denied) (evaluating evidence supporting a claim for negligent entrustment of a

firearm). In Rush v. Smitherman, we confirmed that “liability for negligently entrusting a vehicle

15
to an unlicensed driver is a part of the law of bailments, but not of the law of sales or gifts.” 294

S.W.2d 873, 876 (Tex. App.—San Antonio 1956, writ ref’d) (emphasis added). We explained:

“A bailor entrusts, for what he entrusts is his. But a vendor does not entrust; he sells his chattel.”

Id. at 877; see also id. at 878 (“As between seller and purchaser, when the accident occurred, the

seller had no right to possess or control the car.”). The courts of appeals have consistently

followed Rush and held that “negligent entrustment does not apply to the sale of a chattel.” Nat’l

Convenience Stores, Inc. v. T.T. Barge Cleaning Co., 883 S.W.2d 684, 687 (Tex. App.—Dallas

1994, writ denied); see also, e.g., Jaimes v. Fiesta Mart, Inc., 21 S.W.3d 301, 305 (Tex. App.—

Houston [1st Dist.] 1999, pet. denied).

The plaintiffs cite no Texas cases holding differently but note that section 390 of the

Restatement (Second) of Torts (which depicts the tort of negligent entrustment), 13 unlike the

previous version of the Restatement that we cited in Rush, clarifies that it is intended to apply to

one who supplies chattel by any means, including by sale. See Rush, 294 S.W.2d at 875;

RESTATEMENT (SECOND) OF TORTS § 390 cmt. a (AM. LAW INST. 1965). But we have not

adopted this section of the Second Restatement. Further, in F.F.P. Operating Partners, LP v.

Duenez, we reaffirmed the policy reasons underlying the tort as we have recognized it, noting

that “the basis for imposing liability on the owner of the thing entrusted to another is that

ownership of the thing gives the right of control over its use.” 237 S.W.3d 680, 686 (Tex. 2007)

13
Section 390 describes the tort of negligent entrustment as follows:
One who supplies directly or through a third person a chattel for the use of another whom the
supplier knows or has reason to know to be likely because of his youth, inexperience, or
otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others
whom the supplier should expect to share in or be endangered by its use, is subject to liability for
physical harm resulting to them.
RESTATEMENT (SECOND) OF TORTS § 390 (AM. LAW INST. 1965).

16
(citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS, § 73 (5th ed.

1984)); see also Atl. Indus. Inc. v. Blair, 457 S.W.3d 511, 519 (Tex. App.—El Paso 2014)

(“Without control [of the chattel] there can be no liability [for negligent entrustment].”), rev’d on

other grounds, 482 S.W.3d 57 (Tex. 2016). Extending a common-law negligent-entrustment

claim to a sale of chattel, which results in the seller’s relinquishing control over the very thing

that is subsequently used in a manner that causes harm, contradicts that reasoning.

Therefore, we agree with Academy that no viable cause of action exists under Texas law

for negligent entrustment based on a sale of chattel. In turn, we hold that the plaintiffs may not

rely on the negligent-entrustment exception to pursue their claims. See Prescott, 410 F. Supp. 3d

at 1133 (applying Nevada law on negligent entrustment to determine whether the PLCAA’s

negligent-entrustment exception applied); Soto v. Bushmaster Firearms Int’l, 202 A.3d 262, 278,

283 (Conn. 2019) (holding that the plaintiffs had failed to plead a legally sufficient cause of

action for negligent entrustment under Connecticut law and that the plaintiffs’ action thus could

not proceed under the PLCAA’s negligent-entrustment exception). 14 Absent an applicable

exception, the plaintiffs’ suits are qualified civil liability actions that “may not be brought.” 15

U.S.C. § 7902(a). Accordingly, Academy is entitled to summary judgment under the PLCAA,

and the trial court abused its discretion in denying Academy’s motion.

14
The concurrence agrees that Texas law does not recognize a negligent-entrustment claim in the context
of a sale and thus bars the claims at issue. Post at ___. But the concurrence opines that state law does not come into
play when analyzing whether the PLCAA’s negligent-entrustment exception applies. Id. at ___. Instead, the
concurrence argues that the exception applies, and the PLCAA in turn does not foreclose the claims, so long as the
allegations fall within the PLCAA’s definition of negligent entrustment. Id. at ___; see also Delana v. CED Sales,
Inc., 486 S.W.3d 316, 324 (Mo. 2016). We disagree. Because the PLCAA expressly disclaims the creation of any
cause of action, and negligent entrustment is a creature of state law, state law necessarily informs the application of
the negligent-entrustment exception. Absent a valid state-law cause of action, as is the case here, no cause of action
exists to fall within that exception. Accordingly, we do not read the PLCAA to allow a nonexistent state-law claim
to proceed. Rather, the PLCAA mandates that we look to state law.

17
 B. Adequate Appellate Remedy

Notwithstanding our conclusion regarding the trial court’s abuse of discretion, we may

grant mandamus relief only if Academy lacks an adequate remedy by appeal. Prudential, 148

S.W.3d at 135–36. We determine whether an adequate appellate remedy exists by weighing the

benefits of mandamus review against the detriments. In re United Servs. Auto. Ass’n, 307

S.W.3d 299, 313 (Tex. 2010) (orig. proceeding). This balancing test is necessarily a fact-specific

inquiry that “resists categorization.” Prudential, 148 S.W.3d at 136. Thus, although we have

held that “mandamus is generally unavailable when a trial court denies summary judgment,” In

re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding) (emphasis

added), that principle is not, and cannot be, absolute, see, e.g., In re United Servs. Auto. Ass’n,

307 S.W.3d at 313 (granting mandamus relief from the trial court’s order denying summary

judgment where the relator was “facing a second trial on a claim that we have just held to be

barred”).

The following discussion in Prudential guides us in our evaluation of the propriety of

mandamus relief:

Mandamus review of incidental, interlocutory rulings by the trial courts unduly
interferes with trial court proceedings, distracts appellate court attention to issues
that are unimportant both to the ultimate disposition of the case at hand and to the
uniform development of the law, and adds unproductively to the expense and
delay of civil litigation. Mandamus review of significant rulings in exceptional
cases may be essential to preserve important substantive and procedural rights
from impairment or loss, allow the appellate courts to give needed and helpful
direction to the law that would otherwise prove elusive in appeals from final
judgments, and spare private parties and the public the time and money utterly
wasted enduring eventual reversal of improperly conducted proceedings.

148 S.W.3d at 136. Consistent with that discussion, we have recognized that “[t]he most

frequent use we have made of mandamus relief involves cases in which the very act of

18
proceeding to trial—regardless of the outcome—would defeat the substantive right involved.” In

re McAllen Med. Ctr., 275 S.W.3d at 465. Academy asserts that the PLCAA confers such a

right, while the plaintiffs contend that the PLCAA acts as a preemption defense to liability that is

adequately protected by appeal in the event that a final judgment is rendered against Academy. 15

We begin, as ever, with the statute’s text. In enacting the PLCAA, Congress primarily

sought to “prohibit causes of action against manufacturers, distributors, dealers, and importers of

firearms or ammunition products . . . for the harm solely caused by the criminal or unlawful

misuse of [those] products by others when the product functioned as designed and intended.” 15

U.S.C. § 7901(b)(1). To implement that purpose and others, including “prevent[ing] the use of

such lawsuits to impose unreasonable burdens on interstate and foreign commerce,” id.

§ 7901(b)(4), protecting separation-of-powers and federalism principles, id. § 7901(b)(6), and

preserving citizens’ access to firearms for lawful purposes, id. § 7901(b)(2), the PLCAA

mandates: “A qualified civil liability action may not be brought in any Federal or State court.”

Id. § 7902(a). Congress also mandated that any such action pending on the date of the PLCAA’s

enactment “be immediately dismissed.” Id. § 7902(b).

First, we note Congress’s choice of language in section 7902(a). Congress did not say

that “no liability may be imposed in a qualified civil liability action” or that “a manufacturer or

seller of a qualified product may not be held liable in a qualified civil liability action”; it said that

such an action “may not be brought in any Federal or State court.” We presume that this

15
The Second Circuit has held that the PLCAA’s bar on qualified civil liability actions does not deprive
courts of subject-matter jurisdiction over such actions. City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d
114, 127 (2d Cir. 2011). We express no opinion on that issue, which does not affect our conclusion that mandamus
relief is appropriate in this case.

19
distinction was purposeful, as Congress elsewhere has distinguished between a prohibition

against bringing a suit or claim and a prohibition against imposing liability. See, e.g.,

Communications Decency Act, 47 U.S.C. § 230(e)(3) (stating that “[n]o cause of action may be

brought and no liability may be imposed under any State or local law that is inconsistent with

this section” (emphasis added)). The Fourth Circuit likened the immunity conferred by

section 230 to “an immunity from suit rather than a mere defense to liability,” which is

“effectively lost if a case is erroneously permitted to go to trial.” Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009) (emphasis removed) (citation and

internal quotation marks omitted); see also Fair Hous. Council v. Roommates.com, LLC, 521

F.3d 1157, 1175 (9th Cir. 2008) (interpreting section 230 immunity to “protect websites not

merely from ultimate liability, but from having to fight costly and protracted legal battles”). 16

And as Academy notes, courts have also described other similarly worded federal statutes as

providing covered defendants with immunity from suit. See, e.g., Jackson v. Nat’l Ctr. for

Missing & Exploited Children, No. 19-00607-BAJ-EWD, 2020 WL 4092474, at *2 (M.D. La.

July 20, 2020) (holding that defendant NCMEC was “immune from suit” under a statute

providing that “a civil claim . . . against NCMEC . . . arising from the . . . functions of

NCMEC . . . may not be brought in any Federal or State court”).

The plaintiffs primarily rely on cases applying the collateral-order doctrine, a creature of

federal procedural law that allows immediate appeal of nonfinal orders in very narrow

circumstances, to argue that the PLCAA cannot confer a litigation-defeating immunity because it

16
The court in Nemet Chevrolet noted that “[t]here is some disagreement as to whether the statutory bar
under § 230 is an immunity or some less particular form of defense for an interactive computer service provider.”
591 F.3d at 254 n.4.

20
contains no “explicit statutory or constitutional guarantee that trial will not occur.” Midland

Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989). 17 The plaintiffs contrast the PLCAA

with other federal statutes that contain such an explicit guarantee. 18 However, we have found no

cases evaluating the applicability of the collateral-order doctrine to an order denying dismissal

under the PLCAA, and several federal decisions interpreting the PLCAA recognize the exact

substantive right that the plaintiffs claim is lacking.

For example, in Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009), the Ninth Circuit

reviewed a district court’s order dismissing a suit asserting various negligence and nuisance

claims against a firearm manufacturer and distributor. The suit, filed by the victims of a mass

shooting involving guns manufactured and distributed by the defendants, was pending on the

date of the PLCAA’s enactment and was dismissed under 15 U.S.C. § 7902(b). The district

court described the Act as “provid[ing] immunity to firearms manufacturers and dealers from

any lawsuit, pending or otherwise, fitting the Act’s definition of a ‘qualified civil liability

action.’” Ileto v. Glock, Inc., 421 F. Supp. 2d 1274, 1283 (C.D. Cal. 2006). The court further

noted that such an action “can proceed” only if it falls within one of the Act’s exceptions to that

definition. Id. at 1283–84. In affirming the dismissal order, the Ninth Circuit rejected the

17
To qualify as an appealable collateral order under this doctrine, the order must “(1) conclusively
determine the disputed question, (2) resolve an important issue completely separate from the merits of the action,
and (3) be effectively unreviewable on appeal from a final judgment.” Midland Asphalt Corp., 489 U.S. at 799
(citation and internal quotation marks omitted).
18
The plaintiffs cite statutes containing language ranging from “shall be immune from liability” to “shall be
immune from civil or criminal liability” to “shall be immune from suit” to “shall be immune from suit and liability”
to “shall be immune from civil and criminal process” to “shall be immune from any civil action.” In doing so, they
place unwarranted emphasis on the word “immune” without regard to the surrounding language. To the extent the
plaintiffs suggest that statutes referencing only “immunity from liability” confer a “right not to be tried,” we
disagree. Cf. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003) (explaining, in the sovereign-
immunity context under Texas law, that immunity from suit “prohibits suits against the State unless the State
expressly consents,” while immunity from liability “protects the State from judgments” (emphases added)).

21
plaintiffs’ assertion that the PLCAA violated their procedural due process rights by requiring

dismissal of their pending suit without an adequate hearing. Ileto, 565 F.3d at 1141–42. The

court explained that “the PLCAA does not impose a procedural limitation; rather, it creates a

substantive rule of law granting immunity to certain parties against certain types of claims. In

such a case, the legislative determination provides all the process that is due.” Id. at 1142

(citation and internal quotation marks omitted).

That description is consistent with the Second Circuit’s discussion of the PLCAA in City

of New York v. Beretta, in which the court held that the PLCAA mandated dismissal of a pending

public-nuisance suit against numerous firearm manufacturers and wholesalers for failing to take

reasonable steps to inhibit the flow of firearms into illegal markets. 524 F.3d 384, 389–90 (2d

Cir. 2008). In addressing the City’s constitutional challenges, the court described the PLCAA’s

impact as follows: “By its terms, the Act bars plaintiffs from courts for the adjudication of

qualified civil liability actions, allowing access for only those actions that fall within the Act’s

exceptions.” Id. at 397. The PLCAA thus “immunizes a specific type of defendant from a

specific type of suit” and “bars the commencement or the prosecution of qualified civil liability

actions.” Id. at 398 (emphases added); see also Estate of Kim v. Coxe, 295 P.3d 380, 388–89

(Alaska 2013) (citing Beretta and holding that “Congress’s purpose and intent was to bar any

qualified civil liability action not falling within a statutory exception”).

We find the reasoning of the Second and Ninth Circuits persuasive and consistent with

the PLCAA’s operative language providing that a qualified civil liability action “may not be

brought in any Federal or State court.” 15 U.S.C. § 7902(a). Further, the PLCAA as a whole

conveys Congress’s concern about not only “the effect of civil liability on gun manufacturers,

22
but also the improper use of the judiciary to circumvent legislative judgments.” Jefferies v.

District of Columbia, 916 F. Supp. 2d 42, 47 (D.D.C. 2013). The Jefferies court noted that the

Act’s requirement of immediate dismissal of actions pending on the date of its enactment

“suggests that Congress intended courts to weed out, expeditiously, claims the PLCAA bars.”

Id. That intent is not served by allowing an action barred by the PLCAA to proceed to trial only

to be inevitably reversed on appeal, regardless of the procedural device the defendant utilizes to

seek dismissal. 19

Accordingly, we hold that requiring Academy to “proceed[] to trial—regardless of the

outcome—would defeat the substantive right” granted by the PLCAA. In re McAllen Med. Ctr.,

275 S.W.3d at 465; see also In re GlobalSanteFe Corp., 275 S.W.3d 477, 484 (Tex. 2008) (orig.

proceeding) (holding that “mandamus relief is available when the Legislature has enacted a

statute to address findings ‘that traditional rules of litigation are creating an ongoing crisis,’ and

‘the purposes of the [enacted] statute would otherwise be defeated’” (quoting In re McAllen Med.

Ctr., 275 S.W.3d at 462)) (alteration in original). 20

19
The plaintiffs’ characterization of the PLCAA as merely a “preemption defense” to liability is misplaced.
When presented with the kind of federal preemption defense to which the plaintiffs refer, courts must determine
whether federal law prevents enforcement of a conflicting state law. See Tex. Mut. Ins. Co. v. PHI Air Med., 610
S.W.3d 839, 842–44 (Tex. 2020) (evaluating whether the federal Airline Deregulation Act preempts the Texas
Workers’ Compensation Act’s reimbursement scheme, mandating higher reimbursement rates than the TWCA
otherwise allows). That is, a successful preemption defense “would result only in a change of the applicable law”
the court must utilize to resolve the dispute. See Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex.
1991). By contrast, the PLCAA tells the court when it is (and is not) available as a forum to decide certain disputes
under any law. 15 U.S.C. § 7902(a) (“A qualified civil liability action may not be brought in any Federal or State
court.” (emphasis added)). The PLCAA’s focus on the court as an available forum, while not necessarily
jurisdictional, renders the statute qualitatively different from those that inform the court what law to apply. Cf. In re
Garcia, No. 13-16-00489-CV, 2017 WL 541120, at *2 (Tex. App.—Corpus Christi–Edinburg Feb. 7, 2017, orig.
proceeding [mand. denied]) (mem. op.) (noting that “a choice of law ruling has generally been considered as an
incidental ruling for which there is an adequate remedy by appeal”).
20
We recognize that the phrase “may not be brought” is not always and necessarily a declaration of a
substantive right to avoid participation in the litigation process. Statutes of limitations, for example, generally

23
 Further, while we have held that “an appellate remedy is not inadequate merely because it

may involve more expense or delay than obtaining an extraordinary writ,” Walker v. Packer, 827

S.W.2d 833, 842 (Tex. 1992) (orig. proceeding), we clarified in Prudential that a flexible

mandamus standard means that in some circumstances “the irreversible waste of judicial and

public resources that would be required” absent mandamus relief justifies granting such relief,

148 S.W.3d at 137 (quoting In re Masonite Corp., 997 S.W.2d 194, 198 (Tex. 1999) (orig.

proceeding)); see also CSR Ltd. v. Link, 925 S.W.2d 591, 596–97 (Tex. 1996) (orig. proceeding)

(holding that the “exceptional circumstances” associated with mass tort litigation, including the

use of substantial judicial resources and the significant strain imposed on a defendant’s resources

regardless of the underlying merits, warranted granting mandamus relief even though such relief

was typically unavailable from the denial of a special appearance). To that end, in In re United

Services Automobile Ass’n, we granted mandamus relief from an order denying summary

judgment because the specter of a second “wasted” trial on a claim barred by limitations

constituted “extraordinary circumstances” meriting “extraordinary relief.” 307 S.W.3d at 314.

contain such language. See, e.g., TEX. FAM. CODE § 6.109(b) (“A suit may not be brought under this section after
the first anniversary of the date of the marriage.”). But context is important. The principal purpose of a statute of
limitations is to ensure that the opposing party has “a fair opportunity to defend while witnesses are available.”
Matthews Constr. Co. v. Rosen, 796 S.W.2d 692, 694 (Tex. 1990); see also Godoy v. Wells Fargo Bank, NA, 575
S.W.3d 531, 538 (Tex. 2019) (“Statutes of limitations are the Legislature’s procedural device for establishing a point
of repose for past actions and for ensuring that the search for truth is not impaired by stale evidence or the loss of
evidence.” (citation, internal quotation marks, and alteration omitted)). Such statutes are thus primarily intended to
protect the sanctity of the outcome of litigation, not to prevent the burdens associated with participation in litigation.
By contrast, the PLCAA addresses broader concerns about “use of the judiciary to circumvent legislative
judgments.” Jefferies, 916 F. Supp. 2d at 47; see 15 U.S.C. § 7901(b)(4) (expressing congressional intent to
“prevent the use of [qualified civil liability actions] to impose unreasonable burdens on interstate and foreign
commerce”).
Moreover, we do not rely solely on the PLCAA’s “may not be brought” language to reach our conclusion.
As discussed, the statute’s express findings and purposes, along with its mandate that all actions pending on the date
of its enactment be immediately dismissed, support our determination that the PLCAA “creates a substantive rule of
law granting immunity to certain parties against certain types of claims.” Ileto, 565 F.3d at 1142.

24
Here, Academy faces multiple trials in the four underlying suits alone, plus multiple additional

lawsuits arising from the Sutherland Springs shooting. 21 Absent mandamus relief, Academy will

be obligated to continue defending itself against multiple suits barred by federal law. As in

United Services, this case presents extraordinary circumstances that warrant such relief.

III. Conclusion

We hold that the underlying lawsuits are qualified civil liability actions that the PLCAA

bars as a matter of law. Accordingly, the trial court abused its discretion in denying Academy’s

motion for summary judgment. We further hold that Academy lacks an adequate remedy on

appeal. We therefore conditionally grant Academy’s petition for writ of mandamus and direct

the trial court to grant Academy’s summary-judgment motion. Our writ will issue only if the

trial court does not comply.

_________________________________
Debra H. Lehrmann
Justice

OPINION DELIVERED: June 25, 2021

21
According to Academy’s post-submission brief, a total of nine cases arising from the shooting, involving
more than seventy-five plaintiffs, are pending against Academy.

25