United States Court of Appeals

for the Fifth Circuit

No. 20-40020

Bulkley & Associates, L.L.C., 

Plaintiff—Appellant,

versus

Department of Industrial Relations, Division of 

Occupational Safety and Health of the State of 

California, 

Defendant—Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:19-CV-735

Before Dennis, Higginson, and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

In this case, a Texas company has twice sued a California state agency,

arguing that the agency cannot enforce California regulations in Texas. The 

issue before us is whether the agency’s sending a letter to the company in 

Texas, regarding penalties and inspections related to violations of California 

law, creates minimum contacts that establish personal jurisdiction in Texas 

courts. The district court concluded that it does not. We affirm. 

United States Court of Appeals

Fifth Circuit

FILED

June 10, 2021

Lyle W. Cayce

Clerk

Case: 20-40020 Document: 00515895208 Page: 1 Date Filed: 06/10/2021
No. 20-40020

2

I

Plaintiff Bulkley & Associates, LLC is a Hopkins County, Texas, 

company that transports refrigerated goods interstate. In 2015, a Bulkley

truck driver fell off a truck and was injured while delivering goods to a 

customer in Salinas, California. Defendant Department of Industrial 

Relations, Division of Occupational Safety and Health of the State of 

California, cited Bulkley and assessed penalties for three violations of 

California health and safety law: (1) failing to timely report an injury to 

California authorities, (2) failing to develop an injury-prevention program 

compliant with California law, and (3) failing to require foot protection in 

accordance with California law.1 Bulkley pursued administrative appeals in 

California, disputing the Department’s authority to require Bulkley to 

comply with California law.2 Bulkley lost and has since filed two lawsuits

challenging the Department’s authority, Bulkley I and Bulkley II. Bulkley II is 

before us today, but the issues in Bulkley II are intertwined with those in 

Bulkley I, so we start there. 

Bulkley I began in 2018, when Bulkley filed a petition for mandamus 

in Hopkins County court, seeking judicial review of the California 

administrative appeal that Bulkley lost.

3 The Department removed the 

petition to federal court, and promptly moved to dismiss for lack of personal 

1 See Cal. Code Regs. tit. 8, § 342 (workplace injury reporting); id. § 3203 

(injury prevention); id. § 3385 (foot protection). 

According to an administrative finding, this accident occurred on March 26, 2015. 

The date of the accident does not affect the resolution of the issues before us here. 

2 The record on appeal contains no indication that Bulkley made any payment on 

the penalties.

3 Bulkley & Assocs., LLC v. Occupational Safety & Health Appeals Bd. (Bulkley I ), 

No. 4:18-CV-642, 2019 WL 2411544, at *1 (E.D. Tex. June 7, 2019).

Case: 20-40020 Document: 00515895208 Page: 2 Date Filed: 06/10/2021
No. 20-40020

3

jurisdiction.4 Bulkley argued that the Texas court had personal jurisdiction 

because Bulkley is a Texas resident and because the California law 

authorizing judicial review of agency action directs litigants to the county 

court where they reside: “Any person affected by an order or decision of the 

appeals board may . . . apply to the superior court of the county in which he 

resides, for a writ of mandate, for the purpose of inquiring into and 

determining the lawfulness of the” agency’s decision.5 Bulkley also argued 

that the Department had minimum contacts with Texas because the citations 

“penalized Bulkley for its work rules and procedures, which were created and 

implemented in Texas.”6 The district court rejected both arguments and 

dismissed Bulkley’s claims. In doing so, the district court relied exclusively 

on its lack of personal jurisdiction, though it also noted “serious doubts over 

whether it ha[d] subject matter jurisdiction.”7 Bulkley did not appeal. 

After Bulkley I and before Bulkley II, in August 2019, the Department 

sent Bulkley a letter to collect the unpaid penalties of $6,180, informing 

Bulkley that the Department would pursue a judgment in California court if 

Bulkley failed to pay. On September 9, 2019, the Department sent Bulkley 

another letter, referencing violations of California law “observed during the 

inspection completed on 09/04/2015 [at] the place of employment” 

“maintained by” Bulkley and located in Salinas, California. This letter 

further instructed Bulkley to complete a form confirming that the violations 

had been remedied, and warned that failure to do so could result in the 

4 Bulkley I, 2019 WL 2411544, at *1.

5 Id. at *2–*4; Cal. Lab. Code § 6627.

6 Bulkley I, 2019 WL 2411544, at *6.

7 Id. at *1 n.1.

Case: 20-40020 Document: 00515895208 Page: 3 Date Filed: 06/10/2021
No. 20-40020

4

Department “conduct[ing] a follow-up inspection of [Bulkley’s] place of 

employment” or “issuance of a citation and civil penalty.” 

Bulkley sought and obtained injunctive relief in Hopkins County court 

(commencing Bulkley II, the case now before us), pointing to the September

9, 2019 letter as proof that the Department had possibly inspected Bulkley in 

Texas and was threatening to do so again. Bulkley reasoned as follows: The 

September letter referenced the “place of employment” maintained by 

Bulkley; Bulkley maintained employment only at its headquarters in Texas; 

therefore, the letter could only be referencing inspections in Texas. 

The Department again removed the action to federal court and again 

moved to dismiss for lack of personal jurisdiction. This time, Bulkley argued 

that, since Bulkley I, the Department had developed minimum contacts with 

Texas by sending the September 2019 letter—that is, by possibly inspecting

Bulkley in Texas and threatening to do so again. The district court again 

concluded the Department lacked minimum contacts and dismissed 

Bulkley’s complaint for lack of personal jurisdiction. This appeal followed.

II

A

The parties agree that we have appellate jurisdiction over the district 

court’s final judgment dismissing Bulkley’s claims for lack of personal 

jurisdiction under 28 U.S.C. § 1291. 

On appeal, Bulkley contests subject-matter jurisdiction. Regardless of 

whether a party questions it, we must normally assure ourselves of subjectmatter jurisdiction before we do anything else.

8 But when the issues 

8 See Sangha v. Navig8 ShipManagement Private Ltd., 882 F.3d 96, 100 (5th Cir. 

2018).

Case: 20-40020 Document: 00515895208 Page: 4 Date Filed: 06/10/2021
No. 20-40020

5

regarding subject-matter jurisdiction are more difficult to resolve than other 

possible jurisdictional grounds of dismissal, including personal jurisdiction, 

we may address the other grounds first.

9 In addition to comparing the 

complexity of the possible grounds for dismissal, we consider “concerns of 

federalism, and of judicial economy and restraint.”10

Here, we will address personal jurisdiction before subject-matter 

jurisdiction because: (1) Bulkley contests subject-matter jurisdiction without

analyzing it, (2) the district court expressed reservations regarding subjectmatter jurisdiction in Bulkley I without explaining them,11 and (3) our 

precedents squarely address the personal-jurisdiction question in this case. 

B

We review a dismissal for lack of personal jurisdiction de novo.12

Whenever “the alleged facts are disputed,” the party asserting personal 

jurisdiction has the burden to prove it exists.

13 If the defendant has moved to 

dismiss for lack of personal jurisdiction, the plaintiff bears the burden to

9 Id. (quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 436 

(2007)).

10 Id. (quoting Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 213 (5th Cir. 

2000)). We no longer weigh these institutional concerns differently for cases that are 

removed to federal court from state court, as opposed to cases originally filed in federal 

court. The Supreme Court rejected our previous rule that courts must assess subjectmatter jurisdiction before personal jurisdiction for cases removed from state court. Alpine, 

205 F.3d at 213 (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999)).

11 The Department removed on federal-question grounds. Given Bulkley’s 

constitutional arguments, it appears likely that the district court doubted something other 

than the presence of a federal question. See Bulkley I, 2019 WL 2411544, at *1 & n.1.

12 Def. Distributed v. Grewal, 971 F.3d 485, 490 (5th Cir. 2020), cert. denied, No. 20-

984, 2021 WL 1163750 (U.S. Mar. 29, 2021).

13 Felch v. Transportes Lar-Mex SA DE CV, 92 F.3d 320, 326 (5th Cir. 1996).

Case: 20-40020 Document: 00515895208 Page: 5 Date Filed: 06/10/2021
No. 20-40020

6

identify factsthat demonstrate a prima facie case of jurisdiction.14 In deciding 

whether the plaintiff meets this burden, we take as true the nonconclusory, 

“uncontroverted allegations in the plaintiff’s complaint” and we resolve 

“conflicts between the facts contained in the parties’ affidavits . . . in the 

plaintiff’s favor.”15

Personal jurisdiction in federal court is governed by the law of the state 

in which the federal court sits.16 In Texas, courts evaluate personal 

jurisdiction over nonresident defendants through a two-step inquiry, 

ensuring compliance with the state’s long-arm statute and the Due Process 

Clause of the Fourteenth Amendment.17 Texas’s long-arm statute 

specifically provides for personal jurisdiction over nonresidents who “do[] 

business” in Texas or “commit[] a tort” in Texas.18 As this court has 

observed, however, “the Texas long-arm statute extends to the limits of 

federal due process.”19 Therefore, “the two-step inquiry” of assessing the 

14 Grewal, 971 F.3d at 490. 

15 Felch, 92 F.3d at 327 (quoting Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 

1990)); accord Alpine, 205 F.3d at 215; see also Grewal, 971 F.3d at 490 (addressing 

conclusory allegations (quoting Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 

865, 868 (5th Cir. 2001))).

16 Walden v. Fiore, 571 U.S. 277, 283 (2014) (first quoting Daimler AG v. Bauman, 

571 U.S. 117, 125 (2014), then quoting Fed. R. Civ. P. 4(k)(1)(A)).

17 Grewal, 971 F.3d at 490 (citation omitted). Personal jurisdiction can come in the 

form of general or specific jurisdiction, but general jurisdiction is not at issue in this case. 

18 Tex. Civ. Prac. & Rem. Code § 17.042.

19 Sangha, 882 F.3d at 101 (quoting Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 

602, 609 (5th Cir. 2008)); accord, e.g., Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 

575 (Tex. 2007).

Case: 20-40020 Document: 00515895208 Page: 6 Date Filed: 06/10/2021
No. 20-40020

7

long-arm statute and due process “collapses into one federal due process 

analysis.”20

The Due Process Clause permits jurisdiction over a nonresident 

defendant who “has ‘minimum contacts’ with the forum state such that 

imposing a judgment”21 “does not offend traditional notions of fair play and 

substantial justice.”22 Our constitutional inquiry involves three questions.

23

First, to evaluate minimum contacts, we ask if the defendant “purposely 

directed its activities toward the forum state or purposefully availed itself of 

the privileges of conducting activities there.”24 Second, we ask if the case 

“arises out of or results from the defendant’s forum-related contacts.”25

Third, we ask if “the exercise of personal jurisdiction is fair and 

reasonable.”26 If we answer all three questions in the affirmative, personal 

jurisdiction over the out-of-state defendant satisfies due process.27

20 Sangha, 882 F.3d at 101 (quoting Johnston, 523 F.3d at 609).

21 Stroman Realty, Inc. v. Wercinski, 513 F.3d 476, 484 (5th Cir. 2008) (quoting Int’l 

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). 

22 Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021) 

(quoting Int’l Shoe, 326 U.S. at 316–17).

23 Grewal, 971 F.3d at 490 (citation omitted); see also Ford, 141 S. Ct. at 1024 

(contrasting specific and general jurisdiction).

24 Grewal, 971 F.3d at 490 (quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 

266, 271 (5th Cir. 2006)).

25 Id. (quoting Seiferth, 472 F.3d at 271).

26 Id. (quoting Seiferth, 472 F.3d at 271).

27 Id.

Case: 20-40020 Document: 00515895208 Page: 7 Date Filed: 06/10/2021
No. 20-40020

8

III

The parties dispute whether the Department established minimum 

contacts with Texas. Alternatively, the Department contends that the Texas 

long-arm statute does not apply to out-of-state officials. We take each in turn.

A

In addressing minimum contacts, we first review the possible 

jurisdictional contacts and the parties’ arguments. Next, we review our 

applicable precedents. Last, we conclude that Bulkley fails to demonstrate 

that the Department created minimum contacts with Texas that subject it to 

personal jurisdiction in the state.

1

Accepting the facts as Bulkley tells them and drawing reasonable 

inferences therefrom, the universe of possible jurisdictional contacts

includes: (1) the Department’s sending the September 2019 letter to Bulkley 

in Texas; (2) the letter’s instruction that Bulkley remedy violations of 

California law, which Bulkley could only do by changing its policies in Texas; 

and (3) the letter’s demonstrating the possibility of past and future 

inspections in Texas, by referencing violations “observed during the 

inspection completed on 09/04/2015 [at] the place of employment” 

“maintained by” Bulkley, and warning that the Department would “conduct 

a follow-up inspection of [Bulkley’s] place of employment.” The 

Department, for its part, provides a declaration stating that its only 

inspection of Bulkley took place in California in 2015.

Bulkley asserts that the Department created an ongoing relationship 

with Bulkley (a Texas employer) by sending the September 2019 letter, which

suggests that the Department had inspected Bulkley at its “place of 

employment” in Texas and would do so again in the future. Bulkley says that 

Case: 20-40020 Document: 00515895208 Page: 8 Date Filed: 06/10/2021
No. 20-40020

9

that the district court improperly credited the Department’s evidence that it 

had not and would not inspect Bulkley in Texas. In Bulkley’s view, two pieces 

of evidence show the contrary: (1) the September 2019 letter’s informing

Bulkley of a prior inspection and possible future inspections to ensure 

compliance with California law at the “place of employment maintained by” 

Bulkley, and (2) the Department’s stipulating to the fact that Bulkley 

maintains no place of employment in California. Bulkley reasons that the 

letter could only have been referring to inspections in Texas because the 

letter mentioned no California location and, at any rate, only an inspection at 

Bulkley’s headquarters in Texas could reveal whether Bulkley had remedied 

the three violations of California law, by changing its reporting, injuryprevention, or foot-protection policies. 

The Department claims that its only Texas-related conduct was 

enforcing the civil penalties Bulkley incurred in California. There is no 

genuine conflict in evidence, the Department says, because the “place of 

employment” in the September 2019 letter “obviously refers to” the 

accident site in California, for two reasons. First, the Department points to 

the letter’s enclosure, which indicates the Salinas address. Second, the 

Department relies on California law, which defines “place of employment” 

more broadly than a company’s place of business—the term encompasses 

any place work occurs.

28 Further, the Department asserts, Bulkley 

conspicuously fails to allege or prove that the Department has ever or will 

ever come to Texas for an inspection. The Department concludes that, by 

28 See Cal. Lab. Code § 6303(a)(“‘Place of employment’ means any place, and 

the premises appurtenant thereto, where employment is carried on, except a place where 

the health and safety jurisdiction is vested by law in, and actively exercised by, any state or 

federal agency other than the division.”).

Case: 20-40020 Document: 00515895208 Page: 9 Date Filed: 06/10/2021
No. 20-40020

10

relying exclusively on statements in the letter, Bulkley fails to satisfy the 

burden to demonstrate personal jurisdiction.

2

We have examined Texas courts’ personal jurisdiction over the 

government officials of other states in three cases: Stroman Realty, Inc. v. 

Wercinski; Stroman Realty, Inc. v. Antt; and Defense Distributed v. Grewal.

29

In all three, a Texas business sued an out-of-state official for sending

a cease-and-desist letter.30 In all three, we concluded that sending a ceaseand-desist letter to a Texas business does not, by itself, establish minimum 

contacts with Texas, even if the letter focuses on the business’s activities 

inside Texas.31

In Wercinski and Antt, we found that Texas courts lacked personal 

jurisdiction. The plaintiff in both cases was a Texas real-estate company that 

did business in Arizona, Florida, and California, causing regulators in those 

states to send the company cease-and-desist letters.

32 The plaintiff sued the 

out-of-state officials, claiming that they violated the U.S. Constitution by 

enforcing their states’ real-estate laws against the company.

33 We did not 

29 Both parties invoke Stroman Realty, Inc. v. Antt, 528 F.3d 382 (5th Cir. 2008),

and Wercinski, 513 F.3d at 484. Only the Department filed a 28(j) letter addressing Grewal, 

971 F.3d 485, which was released after the briefing in this case. Bulkley did not respond to 

that letter or otherwise oppose Grewal’s relevance.

30 Wercinski, 513 F.3d at 485–86; Antt, 528 F.3d at 386; Grewal, 971 F.3d at 491–92.

31 Wercinski, 513 F.3d at 485–86; Antt, 528 F.3d at 386; Grewal, 971 F.3d at 491–92. 

See also Halliburton Energy Servs., Inc. v. Ironshore Specialty Ins. Co., 921 F.3d 522, 542–43 

(5th Cir. 2019) (a private actor does not establish minimum contacts by sending “a ceaseand-desist letter threatening litigation”).

32 Wercinski, 513 F.3d at 480–82; Antt, 528 F.3d at 383–85.

33 Wercinski, 513 F.3d at 481; Antt, 528 F.3d at 383.

Case: 20-40020 Document: 00515895208 Page: 10 Date Filed: 06/10/2021
No. 20-40020

11

reach this argument, however, because we concluded that Texas courts 

lacked personal jurisdiction over the out-of-state officials. That is, the 

officials did not create minimum contacts in Texas by pursuing violations of 

their states’ laws as to the plaintiff’s real-estate transactions involving their 

states’ property or residents.34 The officials had not availed themselves of 

Texas law because the plaintiff unilaterally chose to transact with Arizona, 

Florida, and California residents and property.

35

Two specific conclusions from Wercinksi also matter here. First, we

rejected an argument that minimum contacts could arise from the possibility

that an out-of-state official has made, or will make, additional Texas contacts; 

rather, minimum contacts must be “known” and not “hypothetical.”36

Second, we explained that it does not matter if the out-of-state official’s 

enforcement efforts revolve around conduct that takes place in Texas.37

Later, in Grewal, we concluded that Texas courts did have personal 

jurisdiction over the out-of-state official. We held that the New Jersey 

attorney general created minimum Texas contacts by sending Defense 

Distributed, a Texas business that published “materials related to the 3D 

printing of firearms,” a letter “threatening legal action if Defense 

Distributed published its files.”38 In doing so, we explained, the attorney 

general sought to enforce New Jersey law and halt Defense Distributed’s 

activity nationwide, including activity that had no connection to New Jersey 

34 Wercinski, 513 F.3d at 485–86; Antt, 528 F.3d at 386.

35 Wercinski, 513 F.3d at 485–86; Antt, 528 F.3d at 386.

36 Wercinski, 513 F.3d at 484. 

37 Id. at 485; accord Grewal, 971 F.3d at 491 (stating that Wercinksi “expressly 

forecloses” distinguishing between a cease-and-desist letter that “focuse[s] on activities 

occurring outside Texas” and one that “focuse[s] on activities occurring inside Texas”).

38 Grewal, 971 F.3d at 488–89, 497. 

Case: 20-40020 Document: 00515895208 Page: 11 Date Filed: 06/10/2021
No. 20-40020

12

property or residents.39 We explained that, unlike the state officials in 

Wercinski and Antt, the New Jersey attorney general created minimum Texas 

contacts because he failed to cabin his nationwide enforcement efforts to 

conduct involving New Jersey property or residents.

40

3

Applying Wercinski, Antt, and Grewal, the Department did not 

establish minimum contacts solely by way of sending the September 2019

letter.41 And under Wercinski, the possibility that the Department has 

inspected or will inspect Bulkley in Texas does not establish minimum 

contacts.42 Notably, Bulkley never directly asserts that the Department did 

in fact inspect Bulkley in Texas. Construing the evidence in Bulkley’s favor, 

at most the Department claims to have inspected Bulkley in Texas before it 

issued the September 2019 letter and threatens to do so again. But these are 

“hypothetical” contacts; Bulkley needs to show “known minimum 

contacts.”43

Also under Wercinski, it does not matter if the Department’s letter 

instructed Bulkley to remedy violations of California law, which Bulkley 

could only do by changing its policies in Texas. We must adhere to the

principle in Wercinski, which we reaffirmed in Grewal, that a letter “focused 

39 Id. at 492. Judge Higginson, concurring separately, observed that the letter 

began: “You are directed to cease and desist from publishing printable-gun computer files 

for use by New Jersey residents”; yet, the plaintiff had alleged that the attorney general 

threatened to enforce New Jersey law for distributions to residents of other states. Id. at 

499 (Higginson, J., concurring).

40 Id. at 492 (majority opinion); accord id. at 499 (Higginson, J., concurring).

41 Wercinski, 513 F.3d at 485–86; Antt, 528 F.3d at 386; Grewal, 971 F.3d at 491–92.

42 See Wercinski, 513 F.3d at 484. 

43 See id.

Case: 20-40020 Document: 00515895208 Page: 12 Date Filed: 06/10/2021
No. 20-40020

13

on activities occurring outside Texas” is no different from a letter “focused 

on activities occurring inside Texas” for purposes of minimum contacts.44

Granted, the letter does not expressly cabin its instructions to

Bulkley’s California-related conduct. At first blush, this sounds like the 

dispositive jurisdictional fact in Grewal: The New Jersey attorney general 

established minimum contacts with Texas by commanding the plaintiff to 

halt business nationwide, without cabining that command to New Jersey 

business.

45 But the scope of the letter is limited to California-related conduct

in two other ways, distinguishing this case from Grewal.

First, the letter references only violations of California law related to 

a specific 2015 accident in Salinas, California. The record reflects that the 

injured driver was carrying out work in California, and Bulkley does not argue 

otherwise. Second, the California laws that the letter instructed Bulkley to 

follow are themselves limited to persons and events within California.46

Again, Bulkley’s first citation was for violating a requirement to report

workplace injuries “occurring in a place of employment”47—a term the 

California legislature defined to include any work carried on in California, 

and to exclude any work carried on where “health and safety jurisdiction is 

vested by law in, and actively exercised by, an[other] state or federal 

44 Grewal, 971 F.3d at 491 (citing Wercinski, 513 F.3d at 485–86).

45 Grewal, 971 F.3d at 492. 

46 Cf. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 822 (1985) (concluding that, 

although Kansas law did not govern transactions without Kansas ties, Kansas was not 

required “to substitute for its own [laws], applicable to persons and events within it, the 

conflicting statute of another state” (quoting Pac. Emps. Ins. Co. v. Indus. Accident Comm’n, 

306 U.S. 493, 502 (1939)).

47 Cal. Code Regs. tit. 8, § 342. 

Case: 20-40020 Document: 00515895208 Page: 13 Date Filed: 06/10/2021
No. 20-40020

14

agency.”48 Likewise, the second and third violations, regarding injuryprevention programs and foot protection,49 apply only to “places of 

employment in California.”50

Accordingly, the Department’s conduct falls in the same category as 

that of the Arizona, Florida, and California officials in Wercinski and Antt, 

who did not create minimum contacts by enforcing their states’ real-estate 

laws regulating transactions with their states’ property or residents.51

B

Having concluded that the Department lacks minimum contacts 

establishing personal jurisdiction in Texas, we decline to reach the 

Department’s alternative argument that the Texas long-arm statute does not 

apply to out-of-state officials.52

48 Cal. Lab. Code § 6303(a). 

49 Cal. Code Regs. tit. 8, § 3203 (injury prevention); id. § 3385 (foot 

protection).

50 Id. § 3202(a).

51 Wercinski, 513 F.3d at 485–86; Antt, 528 F.3d at 386.

52 We caution against relying on Wercinksi’s suggestion—in dicta, without the full 

panel, see 513 F.3d at 489–90 (Barksdale, J., concurring)—that the Texas long-arm statute 

does not apply to out-of-state officials. This interpretation contravenes Texas Supreme 

Court precedent and invokes federal law that does not clearly apply. 

The Texas Supreme Court has explained that there are no limits on Texas’s longarm statute besides federal due process. Guardian Royal Exch. Assur., Ltd. v. English China 

Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). Absent a conflict with federal law, the last 

word on Texas law belongs to the Texas Supreme Court. See Murdock v. City of Memphis, 

87 U.S. 590, 626 (1874). Wercinski identified “question[s]” and “uncertain[ties],” not a 

conflict. 513 F.3d at 482–83. Doubts do not justify demoting the Texas Supreme Court’s 

interpretation of a Texas statute. Cf. Michigan v. Long, 463 U.S. 1032, 1044 (1983) 

(clarifying constitutional law that constrains state interpretation of state law). Nor are we 

confident that Wercinski’s doubts bear out. We perceive no inherent link between personal 

jurisdiction and sovereign immunity. A State can assert sovereign immunity regardless of 

Case: 20-40020 Document: 00515895208 Page: 14 Date Filed: 06/10/2021
what the long-arm statute says. If the Ex Parte Young exception applies, sovereign immunity 

is unavailable—the official is an individual, not the State, so a sister-State court’s exercising 

personal jurisdiction does not offend state sovereignty, even if the challenged conduct was 

enforcement of a state statute. This anomaly comes from the Ex Parte Young “fiction,” not 

the sister State’s personal-jurisdiction statute.

Case: 20-40020 Document: 00515895208 Page: 15 Date Filed: 06/10/2021