Justice David Gunn
Houston [1st] Court of Appeals Justice David Gunn has urged Texas appellate courts to rule that trial courts do not have discretion to submit pretext instructions that “single out one side’s take on key testimony and prod the jury to find for that side.” Though he concurred in the court’s holding that the trial court didn’t commit reversible error in declining to give the instructions requested by Plaintiff, Justice Gunn would resolve a split between the intermediate appellate courts on the issue in favor of a hard and fast rule against pretext instructions.
The case, Li Li v. TGS-NOPEC (No. 01-24-00087-CV; January 15, 2026), arose from an sex discrimination claim brought by the former employee of a company that provides geoscience data to oil and gas companies. Before the case went to the jury, Plaintiff requested the trial court submit two permissive-pretext instructions in the jury charge. The first instructed the jury that if it didn’t believe the employer’s reason for discharging Plaintiff (poor job performance), it could infer that the employer was motivated by Plaintiff’s sex. The second told the jury that it could infer that the employer fired Plaintiff because she complained about discrimination if it didn’t believe the employer’s stated reason. After the trial court declined to submit the instructions and the jury found for the employer, Plaintiff appealed.
In an opinion by Justice Caughey, the court of appeals affirmed. Observing that the trial court has “considerable” discretion in constructing the charge (as long as it assists the jury, correctly states the law, and is supported by the pleadings and the evidence), it also has discretion to decline to submit surplus questions that burden the jury, although they may otherwise be correct. A court will reverse a charge error “only when the error (if there is error) ‘probably caused the rendition of an improper judgment or prevented the petitioner from properly presenting the case to the appellate courts” (citation omitted). Even assuming that the Plaintiff’s proposed questions were proper (which the court didn’t have to decide), the court went on, they were not mandatory and Plaintiff could point to no Texas authority stating otherwise. Plaintiff made no other complaints about the charge, which “informed the jury that it could draw inferences it found to be reasonable based on the evidence.” Plaintiff’s counsel was also free to argue for the inference, which counsel did when it told the jury that “employers who discriminate or retaliate ‘do not say it out loud’ or ‘admit it.’” The court thus found that “it was unnecessary to instruct the jury on one possible inference that aligned with the theory of the case that [Plaintiff’s] counsel presented to the jury.”
Justice Gunn’s primary concern with pretext instructions are that “[t]hey put a judicial thumb on the scale, when the critical task of weighing evidence belongs exclusively to the jury.” It should be up to the lawyers to “duke it out at trial, and let the winner get the benefit of all the reasonable inferences.” He contends that the issue is important to the jurisprudence of the state, not only because it cuts both ways and can help or hurt either party (particularly in employment litigation), but also because it will decide an issue on which federal and state courts are split once and for all. We agree. We don’t always pretend to know what juries actually hear in the heat of the squabble, but we are fairly confident that they listen to the judge. That makes it all the more important that the judge give only the necessary instructions and leave the reasonable inferences to the factfinders.
