In February of 2020, Great Lakes Dredge and Dock Company wrote to the U.S. Customs and Border Protection (“CBP”) requesting guidance on whether the Jones Act would work to protect their interests with regard to ongoing offshore wind construction efforts being undertaken off the coast of Martha’s Vineyard. Specifically, they wanted to know whether the Jones Act’s cabotage restrictions would apply to vessels transporting scour protection material (layers of rock placed on the seafloor around offshore wind turbines to protect them from erosion) from U.S. locations to pristine or undeveloped points on the Outer Continental Shelf (“OCS”).

CBP’s Initial Ruling and Course Correction

In response, CBP issued a ruling explaining that the Jones Act would indeed apply to any vessel carrying scour protection material from a U.S. point to a prospective wind farm on the OCS, since doing so would constitute the transportation of “merchandise” between “coastwise” points.

However, CBP reversed course on this ruling two months later through a subsequent modification to the aforementioned ruling. The modified ruling announced that the Jones Act’s cabotage restrictions would not apply until after the first delivery of scour protection material onto the seafloor. By way of explanation for this modified ruling, CBP proclaimed that a pristine/undeveloped point on the OCS is not a coastwise point until there has first been some deposit or installation of material on the seabed. Thus, the initial deposit of scour material necessary for constructing an offshore wind farm can be achieved without the use of a coastwise compliant vessel.

Great Lakes Challenges CBP’s Regulatory Shift

Understandably, this regulatory shift caused substantial consternation for decision makers within Great Lakes. Not only did this ruling expose the larger offshore wind sector to significant foreign competition, but it also came down just as Great Lakes had begun constructing the very first Jones Act compliant subsea rock installation vessel, an asset specifically intended to meet the growing demand for coastwise complaint construction vessels in this sphere. As such, Great Lakes took the position that CBP’s modified ruling unjustifiably created a regulatory loophole that substantially undermines the interests of the domestic maritime industry.

Great Lakes thereafter filed suit against the CBP in the Southern District of Texas, arguing that their modified ruling should be set aside by virtue of conflicts with the Jones Act, the Outer Continental Shelf Lands Act, and the Administrative Procedure Act. The American Petroleum Institute (“API”) subsequently intervened in that suit in order to contest Great Lake’s standing to bring this action under Article III, to which Great Lakes responded by arguing that because CBP’s ruling opened them up to competition from foreign vessels, they suffered a redressable injury which empowers them to bring suit. The District Court sided with API and dismissed Great Lakes’ action for lack of standing.

Modified CBP Ruling Remains in Effect

On February 7, 2025, the U.S. Fifth Circuit similarly declined to reach the merits of Great Lakes’ challenge by dismissing their claim and appeal for lack of standing. In so ruling, the Court explained that the mere possibility that Great Lakes may face increased competition in the future is not enough to create standing; rather, a party seeking to rely on “competitor standing” is required to show that the government action at issue has caused them to suffer an actual or imminent increase in competition. Great Lakes could not make this showing because their “injury” was merely hypothetical; they did not presently have a vessel capable of handling similar projects, nor could they point to any prospective projects that called for scour protection to be sourced from U.S. points. Therefore, they lacked standing to contest CBP’s ruling.

The Fifth Circuit’s refusal to consider the merits of Great Lakes challenge to the modified ruling means that it remains in force, for the time being. As such, voyages originating from a point within the United States carrying merchandise to pristine locations on the Outer Continental Shelf may permissibly be undertaken by foreign-flagged, foreign built, and/or foreign-crewed vessels. However, once an initial deposit/installation has been made onto the seafloor, any further voyages to that location from the United States will be subject to the Jones Act’s cabotage requirements (so long as that initial deposit or installation was made for the purpose of exploring for, developing, or producing resources, including non-mineral resources such as wind energy).

Matthew Gaar is a member of Kean Miller’s Offshore Energy & Marine group and practices in the firm’s New Orleans office. His Certificate of Concentration in Maritime Law from Tulane Law School uniquely qualifies Matthew to represent clients in all areas of admiralty law, including Jones Act regulatory compliance, maritime tort litigation, and contractual maritime litigation.

On April 13, 2021, the SEACOR Power, a 234-foot lift boat, encountered a powerful thunderstorm after departing Port Fourchon, Louisiana. The localized severe weather event produced heavy rain, 2- to 4-foot seas, and winds in excess of 80 knots. As the crew of the SEACOR Power attempted to lower the vessel’s legs to the sea floor to ride out the storm, the vessel capsized, resulting in multiple casualties.

How Private Entities Qualify for Federal Officer Jurisdiction

In April 2024, personal representatives of the SEACOR Power’s crew members filed suit against the American Bureau of Shipping (“ABS”) and related companies in Texas state court asserting personal injury and wrongful death claims. In response, ABS filed for the removal of the case to the Southern District of Texas under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). The plaintiffs moved to remand back to state court, and the district court granted their motion. After an unsuccessful motion to reconsider, ABS appealed the remand decision to the U.S. Fifth Circuit.

The federal officer removal statute grants federal jurisdiction over a claim against a nongovernmental defendant “acting under” the direction of the United States through one of its agencies or officers. To be eligible for federal officer jurisdiction, a defendant must meet four criteria:

  1. the defendant’s federal defense must be colorable;
  2. the defendant must be a “person” within the meaning of the statute;
  3. the defendant must have acted under direction of a federal officer; and
  4. the charged conduct is connected or associated with actions taken pursuant to the directions of a federal officer.

A private entity can generally satisfy these elements if it can show that it acted to assist or carry out the duties assigned to it by a federal officer exercising control over the entity.

How ABS Met the Federal Officer Standard

ABS is a unique entity. ABS serves as a classification society, setting safety and design standards for ships and marine-related facilities, but it also inspects ships and other facilities for compliance with United States laws and commercial standards. As part of its inspection program, ABS serves the U.S. Coast Guard (“USCG”) as a “Recognized Organization.” This means that the USCG has delegated authority to ABS to perform mandatory vessel inspections on its behalf. The relationship between the USCG and ABS is memorialized in a written agreement titled “Agreement Governing the Delegation of Statutory Certification and Services for United States of America Flag Ships.”

With respect to the SEACOR Power, ABS provided classification and technical services for the vessel, including reviewing plans and documentation during its design and construction, surveying the vessel, and supervising critical testing. In their suit, the plaintiffs alleged that ABS failed “to ensure the vessel met necessary stability requirements.”

In its decision on appeal, the U.S. Fifth Circuit found that given its special relationship with the USCG, ABS met the criteria for federal officer jurisdiction for several reasons. ABS performs duties, including performing vessel inspections and issuing inspection certificates, that by law the USCG would otherwise have to do itself. The USCG maintains “comprehensive and targeted oversight” over the ABS through a specific office setup exclusively for that purpose. Numerous statutes and regulations expressly charge ABS with the performance of duties on behalf of the USCG.

The USCG has also adopted detailed regulations with respect to “Recognized Organizations,” including ABS, defining their scope of responsibility. Given all of these ties between ABS and the USCG, which existed at the time relevant to the SEACOR Power casualty, the U.S. Fifth Circuit found that ABS satisfied the standard for “acting under” the direction of a federal officer, and ABS had properly invoked federal officer jurisdiction with respect to the claims of the plaintiffs.

Other Private Entities May Also Qualify for Federal Officer Jurisdiction

ABS is a highly specialized organization that the USCG relies on to perform important regulatory functions, but ABS is not entirely unique in this regard. The USCG partners with private entities in a number of areas to accomplish tasks on its behalf, including Subchapter M compliance, mariner training, and maritime security. With respect to these and other areas where the USCG deputizes private entities to perform regulatory functions, the possible exercise of federal officer jurisdiction should be considered in the event of a casualty or dispute.

Daniel Stanton is a member of Kean Miller’s Offshore Energy & Marine group. He has more than a decade of experience litigating complex and catastrophic accident and injury cases in federal and state courts in Louisiana, Texas, Alabama, and North Carolina.

A Texas appellate court recently addressed the applicability of Chapter 95 to protect a landowner from negligence claims brought by a contractor injured while working on-site, finding that a utility company owning an easement qualified as a landowner, and that plaintiff’s counsel had not established the landowner’s actual knowledge of the danger to avoid the protections of Chapter 95.

On August 7, 2025, the Court of Appeals for the First District of Texas issued its opinion in CenterPoint Energy Houston Electric, LLC v. Garett Wilder, No. 01-22-00853-CV, reversing the District Court’s entry of a jury verdict awarding plaintiff Garett Wilder nearly $15.5 million for the injuries he sustained in a 40’ fall from a utility pole owned by CenterPoint.

CenterPoint contracted with Wilder’s employer, L.E. Myers Co. to replace certain step-bolts on a concrete transmission pole located in a public utility easement owned by CenterPoint.  Wilder utilized safe climbing practices in his ascension of the pole, but the insert in the pole unexpectedly failed, causing the step-bolt to detach and Wilder to fall 40’ to the ground.  Wilder sued CenterPoint for damages in negligence, and was awarded $15,466,597 at trial by the jury.  CenterPoint appealed.

CenterPoint argued on appeal that Texas Civil Practice and Remedies Code Chapter 95 applied, and that Wilder did not overcome the presumptions of Chapter 95 necessary to support the jury’s verdict.

Chapter 95 limits a property owner’s liability for the personal injury, death or property damage claims of an independent contractor or its employee arising from the condition or use of an improvement to real property being constructed, repaired, renovated or modified by the contractor.[1]  The property owner has the burden of establishing that Chapter 95 applies.[2]  Once established, plaintiff must show that both of the exceptions to the protections of Chapter 95 exist: (1) the property owner retained control over the work; and (2) that the property owner had actual knowledge of the danger and failed to warn the subcontractor.[3]

Testimony from both parties’ witnesses at trial established there had been previous work done on the same transmission pole, and that the step-bolt and insert failure was sudden and unanticipated.  Nevertheless, the jury found in favor of Wilder on his negligence claim, specifically that CenterPoint had some control over the manner of his work other than the right to order the work to start or stop, to inspect progress or receive reports, and that CenterPoint was negligent in causing Wilder’s injury as (1) the condition of the step-bolts posed an unreasonable risk of harm; (2) CenterPoint knew or should have known of the dangers; and (3) CenterPoint failed to exercise ordinary care to protect Wilder from that danger.

The Court of Appeals first considered if Chapter 95 applied to the claim.  The parties agreed that it was a claim for damages caused by negligence leading to personal injury and that the claim was asserted by an employee of a contractor, but disagreed on whether or not CenterPoint, as the owner of a public utility easement, qualified as a property owner, and if Wilder’s claims arose form a condition or use of an improvement to real property.

The Court looked to the common, ordinary meaning of “real property,” including Black’s Law Dictionary’s definition of real property, which states “[r]eal property can be either corporeal (soil and buildings) or incorporeal (easements),” [4] and prior Texas rulings characterizing easements, concluding that CenterPoint qualified as a property owner under the statute by its ownership of a public utility easement.  Analyzing if Wilder’s claims arose from the condition or use of an improvement to real property, the court again looked to Black’s Law Dictionary and prior decisions to define “improvement.” The Court noted that the Texas Supreme Court previously encouraged a broad definition of the term,[5] which has included streets, sidewalks, and sewer utilities,[6] and found that the transmission pole in this instance was an improvement.

After determining that Chapter 95 did apply to the claims, the Court determined that, under the facts presented, Wilder failed to show that CenterPoint had actual knowledge of the danger that resulted in Wilder’s injuries.  As Wilder did not overcome the presumptions of Chapter 95, the Court reversed the judgment of the trial court and rendered a take-nothing judgment in CenterPoint’s favor.

Wilder filed a Petition for Review with the Supreme Court of Texas on August 26, 2025, briefing the sole issue that the Appellate Court erred in determining that CenterPoint’s ownership of an easement qualified it as a property owner under Chapter 95, and raising the unbriefed issues of whether the transmission pole was an improvement to real property and if the evidence conclusively established CenterPoint’s actual knowledge.  Responsive briefing is due September 25, 2025, and we will continue to monitor the matter and the applicability of Chapter 95 to these types of claims.

[1] Tex. Civ. Prac. & Rem. Code §§ 95.001, 95.002.

[2] Los Compadres Pescadores, L.L.C. v. Valdez, 608 S.W.3d 829, 834-35 (Tex. App.—Corpus Christi-Edinburg 2019), aff’d, 622 S.W.3d 771 (Tex. 2021).

[3] Tex. Civ. Prac. & Rem. Code § 95.003.

[4] Property, Black’s Law Dictionary (12th ed. 2024).

[5] Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 568 (Tex. 2016).

[6] Mendoza v. Clingfost, No. 12-08-00315-CV, 2010 WL 827295, at *4

On July 16, 2025, the U.S. Coast Guard’s final rule to update cybersecurity requirements for U.S.-flagged vessels, Outer Continental Shelf (OCS) facilities, and facilities subject Maritime Transportation Security Act of 2022 (MTSA) begins to take effect. The final rule is codified at 33 C.F.R. § 101.600 et seq (“Rule”). In addition to other security regulations already in place, the Rule newly requires the owners and operators of the impacted entities to report certain cybersecurity events, develop and implement Cybersecurity and Cyber Incident Response Plans, and designate a Cybersecurity Officer responsible for implementing the plans. Certain provisions of the Rule are in effect now, while others are on a phased implementation.

While the Rule represents a good-faith effort to further strengthen the cyber-resilience of the U.S.’s maritime industry and environment, the notification and other requirements appear to further complicate already overlapping notification obligations in place today, as well as future notice obligations expected from other federal agencies.

New Notice Requirement Now in Place

The Rule now requires entities that have not reported a reportable cyber incident to the Coast Guard pursuant to, or are not subject to, 33 C.F.R. 6.16-1, are now required to report to the National Response Center (NRC) “without delay”. § 101.650(g)(1) (emphasis added). A “reportable cyber incident” is:

[A]n incident that leads to or, if still under investigation, could reasonably lead to any of the following: Substantial loss of confidentiality, integrity, or availability of a covered information system, network, or OT system; Disruption or significant adverse impact on the reporting entity’s ability to engage in business operations or deliver goods or services, including those that have a potential for significant impact on public health or safety or may cause serious injury or death; Disclosure or unauthorized access directly or indirectly of nonpublic personal information of a significant number of individuals; Other potential operational disruption to critical infrastructure systems or assets; or Incidents that otherwise may lead to a transportation security incident as defined in 33 CFR 101.105.

Id. at § 101.615.

And yet, 33 C.F.R. 6.16-1 already requires the following U.S.-flagged vessels, harbors, ports, and waterfront facilities:

Evidence of sabotage, subversive activity, or an actual or threatened cyber incident involving or endangering any vessel, harbor, port, or waterfront facility, including any data, information, network, program, system, or other digital infrastructure thereon or therein, shall be reported immediately to the Federal Bureau of Investigation, the Cybersecurity and Infrastructure Security Agency (for any cyber incident), and the Captain of the Port, or to their respective representatives.

The key phrasing “have not yet reported” leads to overlapping reporting requirements based on the deadline to report under the new Rule versus existing USCG obligations. The NRC must be done “without delay”, while reporting to the Federal Bureau of Investigation (FBI), the Cybersecurity and Infrastructure Security Agency (CISA), and the Captain of the Port must be done “immediately.”

Adding to this inconsistency is the anticipated final rule from the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA). Under the proposed rules released in 2024, a critical infrastructure entity must report a covered cyber incident to CISA within 72 hours and a ransomware payment within 24 hours of that payment. See 96 Fed. Reg. 23660. CIRCIA also has varying definitions of what constitutes a reportable or covered cyber incident.

That being said, CISA has still not released a final rule for review, and time is running out. CISA must publish a final rule by October 2025, and current reporting suggests that the agency may not be able to fulfill that requirement. Despite outspoken commitment and movement by CISA since the CIRCIA’s passage to meet the deadline throughout 2022-2024, CISA has said little on CIRCIA since January 2025.[1] CISA has also been without a confirmed director of CISA since January 20, 2025. As that deadline inches ever closer, impacted entities should watch to see whether CIRCIA is amended to allow for additional time to prepare a final rule or if the current administration will halt the progress made and prevent a rule from being finalized.

U.S.-flagged vessels, Outer Continental Shelf (OCS) facilities, and facilities subject Maritime Transportation Security Act of 2022 (MTSA) should be aware of these reporting obligations and their deadlines to comply with the regulations in the event of a cybersecurity incident. The first 24-72 hours of a cyber incident are intense and hectic; knowledge of these deadlines and process for handling them is critical to maintaining compliance during an incident response.

Additional Obligations

The Rule provides for additional obligations that become effective January 12, 2026 and July 16, 2027. The USCG also asked for, and received, public comments concerning whether enforcement of these obligations should be delayed for U.S.-flagged vessels, as they may require more time than facilities to implement all requirements in the final rule.[2] Owners and operators of U.S.-flagged vessels should monitor further developments from the USCG and any additional time provided.

Currently, by January 12, 2026:

  • All entity personnel with access to IT and OT (operational technology) systems must complete cybersecurity training, including recognition of threats and threat detection, techniques used to circumvent cybersecurity measures, procedures for reporting cyber incidents to the entity’s Cybersecurity Officer (CySo) and any operational technology specific training.
  • Key personnel with access to IT and remotely available OT systems must, in addition to the above training, complete additional training concerning their responsibilities during a cyber incident and how to maintain current knowledge of emerging cyberthreats and countermeasures.

By July 16, 2027:

  • Owners and operators must designate, in writing, their CySo.
  • Owners and operators must conduct a Cybersecurity Assessment and annually thereafter (or sooner if there is a change in ownership).
  • Owners and operators must submit their Cybersecurity Plan to the USCG for approval.

The Cybersecurity Officer (CySo) is similar to a Data Protection Officer and is responsible for overseeing the cybersecurity implementation and incident response. The CySo will also lead the effort to conduct a Cybersecurity Assessment and submit the Cybersecurity Plan to the USCG for approval.

A “Cybersecurity Assessment” is an appraisal of the risks facing an entity, asset, system, or network, organizational operations, individuals, geographic area, other organizations, or society, and includes identification of relevant vulnerabilities and threats and determining the extent to which adverse circumstances or events could result in operational disruption and other harmful consequences. This assessment helps evaluate the systems as they currently stand, improvements to be made, and potential risks should the information be compromised. The Assessment helps inform the Cybersecurity Plan, which ensures application and implementation of the cybersecurity measures designed to protect the owner’s or operator’s systems and equipment.

Once the USCG approves the Cybersecurity Plan, owners and operators must conduct cybersecurity drills at least twice each calendar year. Owners and operators must also conduct cybersecurity exercises at least once per calendar year. Personnel involved in implementing the activities discussed in the Cybersecurity Plan must be trained within 60 days of receiving approval of the Plan. Further, owners and operators must ensure that the cybersecurity portion of the Plan and an entity’s penetration test results are available to the USCG upon request.

Further Remarks

Whether a delay is instituted or not, entities subject to these new requirements would be wise to act now to implement the requirements into their current cyber incident response plans and initiate discussions on how to achieve and maintain compliance. This new Rule, particularly the approval process for the Cybersecurity Plans, reflects a major “hands on” change in how the USCG will monitor and effectuate cybersecurity controls in the maritime space. It is not uncommon for a cybersecurity assessment to reveal overlooked lapses in security measures, so entities should give themselves sufficient time to complete the assessments and address any oversights well before the 2026 and 2027 deadlines.

[1] Lauren Boas Hayes, “CISA is facing a tight CIRCIA deadline. Here’s how Sean Plankey can attempt to meet it”, Cyberscoop.com (Jul. 30, 2025) (https://cyberscoop.com/cisa-sean-plankey-circia-deadline-op-ed/).

[2] “Fact Sheet: U.S. Coast Guard Issues Final Rule & Request for Comments on New Cybersecurity Regulations for the Marine Transportation System”, U.S. Coast Guard (Jan. 2025) (https://www.uscg.mil/Portals/0/Images/cyber/Cyber%20Regulations%20Fac

This article was originally published in the Texas Academy of Family Law Specialists Family Law Forum.

Guardianship Law: An Overview

With our aging population, second marriages and the blended families that arise therefrom, both elder law and family law attorneys are witnessing an uptick in divorce proceedings filed by adult children of elderly parents. These divorce filings are often made in an adult child’s role as guardian of their parent or as agent under power of attorney. Another correlation between our aging population and the increase in divorce proceedings is an increase in guardianship proceedings being initiated by adult children of elderly parents, or sometimes by the other spouse in retaliation for the filing of the divorce proceeding. While these issues are quite broad and could conceivably consume a multi-day CLE program, this article will focus on the general procedures of guardianships, with an emphasis on subject matter jurisdiction of probate courts when a divorce proceeding overlaps with a guardianship proceeding, and will share practical considerations for family law practitioners to keep in mind when they find themselves in the crosshairs of guardianship law and family law.

The statutory scheme for guardianships can be found in Title 3 of the Texas Estates Code. Notably, Title 3 begins with the purpose of guardianship and the reason it warrants its own section in the Texas Estates Code, which is to “promote and protect the well-being of [an] incapacitated person.”[1] Generally speaking, an incapacitated person is defined as someone who is mentally, physically, or legally incompetent.[2] The Texas Estates Code’s definition of an incapacitated person also includes minors and adults who are unable to care for their own physical health or manage their own affairs.[3]

A guardianship proceeding over an allegedly incapacitated person, or, in other words, a “proposed ward,” can be initiated in one of two ways: (1) by filing an application requesting a guardianship over the proposed ward, or (2) by the court itself after someone has filed an information or doctor’s letter regarding the proposed ward.[4] However, guardianship proceedings are typically initiated by the filing of an application by someone close to or involved with the proposed ward. Chapter 1101 of the Texas Estates Code sets forth the pleading requirements for an application for guardianship and essentially provides a checklist of the information required to be included in an application for guardianship. Chapter 1101 also lays out the burdens of proof that the person seeking a guardianship must meet, and the findings that the court must make, to successfully obtain a guardianship over the proposed ward.[5]

Regardless of whether a guardianship proceeding is initiated by the filing of an application or an information letter, another procedural hurdle with guardianships is determining what court has jurisdiction to consider such a case. The Texas Estates Code confers jurisdiction over a guardianship proceeding to “a court exercising original probate jurisdiction.”[6] As to which court has original probate jurisdiction, that can vary by county and generally depends on the structure of the court system in the county in which the guardianship will be pending. The first step to answering this question is determining whether the county has a statutory probate court or not. In counties with a statutory probate court, which are typically in larger metropolitan areas of Texas, the statutory probate court possesses exclusive jurisdiction over all guardianship proceedings.[7] Less-populated counties typically do not have a statutory probate court, and instead have a county court and/or a county court at law. In a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, the county court has original jurisdiction of guardianship proceedings.[8] In a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, the county court at law exercising original probate jurisdiction and the county court have concurrent original jurisdiction of guardianship proceedings, unless otherwise provided by law.[9]

Subject Matter Jurisdiction: Guardianship v. Divorce

While subject matter jurisdiction for guardianship proceedings is governed by the Texas Estates Code, subject matter jurisdiction for divorce proceedings is governed by the Texas Constitution and the Texas Government Code. Article 5, Section 8 of the Texas Constitution grants district courts original jurisdiction over all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by the Texas Constitution or other law on some other court, tribunal, or administrative body.[10] A divorce proceeding is an in rem action over which the district court has subject matter jurisdiction.[11] However, a divorce proceeding may also proceed in a statutory county court depending on the amount in controversy.[12]

The differences in subject matter jurisdiction between guardianship and divorce proceedings is further complicated by the fact that the courts that handle these cases may vary from county to county. Many counties have specifically designated courts for family law cases in the Government Code.[13] Even if the Government Code does not have a specifically designated family court for a particular county, the district judges are empowered with the authority to adopt rules for the filing of cases, assignment of cases for trial, and the distribution of the work amongst the courts.[14] As a result, district judges may make rules and enter orders amongst themselves to divide cases in a certain manner that they determine is best for judicial efficiency. While this may not be a strictly jurisdictional issue, because all the district courts still retain subject matter jurisdiction as provided by the Texas Constitution, it is a practical consideration for the filing of divorce cases.

These variations in subject matter jurisdiction between divorce and guardianship mean that it is rare for a guardianship and a divorce to be pending in the same court unless the jurisdictional stars align. If the cases were ever in the same court, it would likely be in a smaller county in Texas where there was no statutory probate court to hear the guardianship. For example, a divorce proceeding that is filed within the jurisdictional limits of the statutory county court may be heard alongside a contested guardianship proceeding that is also filed or transferred to that same court. Another example may be in a small county that has no statutory probate court or county court at law exercising original probate jurisdiction, and a guardianship proceeding that becomes contested is transferred to a district court.[15] By contrast, in larger counties that do have statutory probate courts, the guardianships and divorces will never be filed in the same court because the statutory probate court has exclusive jurisdiction of guardianships and divorce cases are always filed in the district courts or a statutory county court.[16]

These nuances in jurisdiction cause understandable confusion for practitioners who are participating in concurrent divorce and guardianship proceedings that involve the same parties. The “first filed” rule, or dominant jurisdiction rule, will not apply when evaluating whether a divorce proceeding versus a guardianship proceeding should proceed first because the two cases involve different disputes and the respective subject matter for each case will often invoke the jurisdiction of different courts.[17]

However, even if the divorce and guardianship are filed in different courts, the Texas Estates Code confers jurisdiction on statutory probate courts to hear matters appertaining to or incident to a guardianship estate.[18] In the case of In re Graham, the parties to the divorce were Richard and Gitta Milton.[19] Analyzing Section 608 of the Probate Code (now Section 1022.007 of the Estates Code), the Texas Supreme Court determined that the divorce was a matter related to Mr. Milton’s guardianship estate.[20] As a result, the Court held that the statutory probate court had authority to transfer to itself from a district court a divorce proceeding when one party to the divorce is a ward of the probate court.[21]

One important distinction to be made about the parties in Graham is that divorce involved a spouse (Richard Milton) who had already been determined by the probate court to be incapacitated and a guardian had been appointed. Cases where a guardianship and a divorce are both pending and a party to a divorce has not been determined to be incapacitated are more complicated. If the guardianship is pending in a statutory probate court, a party may ask for a transfer of the divorce to that court under Section 1022.007 of the Texas Estates Code. However, the transfer request is not guaranteed to be granted, and probate judges are often hesitant to allow the transfer because they do not typically preside over divorces and may be uncomfortable in doing so. Depending on the circumstances, a party may strategically choose to keep the divorce and guardianship separated in their respective courts so that each case may be presided over by a judge with experience in that subject matter. Further, if the proceedings are pending in a county without a statutory probate court, a transfer under Section 1022.007 would not be permitted, and the cases would have to remain segregated in their respective courts.

Texas Enters the Guardian Divorce Debate: How Benavides Set the Stage Without Choosing Sides

Beyond jurisdictional complexities lies an even more fundamental question that has divided courts nationwide: Can a guardian initiate divorce proceedings on behalf of their incapacitated ward? This seemingly straightforward question pits the protection of vulnerable adults against the preservation of personal autonomy in marriage, creating a legal battlefield where the stakes involve both individual liberty and family safety. The Texas Supreme Court finally addressed this contentious issue in In re Marriage of Benavides, No. 23-0463, 2025 WL 1197404 (Tex. Apr. 25, 2025)—but rather than choosing sides, the Court outlined an entirely new framework that would ensure protection while leaving the ultimate policy choice to the Legislature.

The Benavides Framework: Procedural Innovation Over Policy Choice

The Benavides case—featuring a wealthy Laredo patriarch with dementia, his fourth wife, competing inheritance claims, and a daughter seeking to protect her father from alleged exploitation—forced the Court to finally provide clarity. Rather than making the difficult policy choice between protection and autonomy, the Court outlined a sophisticated procedural framework that would govern guardian divorces if such authority exists, requiring two mandatory judicial safeguards.

First, the guardianship court must expressly authorize the guardian to pursue the divorce. General litigation authority is not sufficient—the court must specifically consider and approve divorce proceedings as within the guardian’s powers.

Second, both courts must find that divorce serves the ward’s best interests. The guardianship court must determine that granting divorce authority promotes the ward’s well-being, and the family court must independently conclude that actually granting the divorce is in the ward’s best interests and promotes and protects the ward’s well-being.

The Court’s conditional framework acknowledges compelling arguments on both sides while explicitly refusing to make the ultimate policy choice about whether such authority should exist. The Court explicitly noted that “the Legislature may wish to consider amending the Estates Code or the Family Code to plainly express its policy choice on this issue.”[22] Any future guardian divorce petition would need to navigate this two-court, two-finding framework if such authority is established.

The decision’s practical requirements would transform guardian divorce practice entirely. Guardians would need to obtain express authorization before filing and build compelling evidence that divorce truly serves the ward’s well-being. Courts could not simply apply standard no-fault divorce criteria—they would need to independently evaluate whether dissolution promotes the specific ward’s interests.

What This Means Going Forward

Benavides maps the doorway without deciding whether to open it—establishing what procedures would be required if guardian divorces are permitted. Should Texas ultimately permit guardian divorces, family lawyers would need to navigate two courts and meet high evidentiary burdens under the Benavides framework. The decision explicitly invites legislative action, urging policymakers to choose between autonomy and protection. Until then, Texas practitioners operate in an uncertain landscape—one where the fundamental question remains unanswered.

Practice Guidance, Ethical Considerations, and Conclusion

When guardianship and divorce proceedings are concurrent or intersect with one another, practitioners should carefully consider the order in which they proceed with the divorce or guardianship proceedings to ensure that the constitutional and due process rights of the alleged incapacitated person are protected. In guardianships, the Texas Estates Code requires the appointment of an attorney ad litem to represent the legal interests of the proposed ward in that proceeding.[23] However, the attorney ad litem’s authority to represent the proposed ward is limited to the guardianship proceeding, unless the probate court enters an order specifying otherwise. If the proposed ward has hired their own counsel, the probate court will need to conduct a hearing to determine if the proposed ward has the ability to retain their own counsel.[24] The proposed ward’s ability to retain their own counsel in the guardianship would also affect their ability to do so in the divorce. The retention and authority of legal representation for the proposed ward in both the guardianship and the divorce proceedings is a crucial issue to determine at the beginning of the proceedings to ensure the proposed ward’s due process rights are protected. 

Another consideration for practitioners is the proposed ward’s ability to enter into agreed orders in the divorce or participate in other negotiations or agreements. Findings related to a party’s capacity or incapacity should be handled by the probate court, not the divorce court, and these determinations directly affect the way the divorce proceeds. For example, if a divorce proceeding goes forward with an alleged incapacitated person as a party, the parties and the family court run the risk that orders or agreements entered into by the alleged incapacitated party may be void or voidable. A possible solution is to ask the probate court to appoint a temporary guardian for the alleged incapacitated party with the authority to participate in the divorce proceeding. Alternatively, the divorce could be abated pending a final determination of the need for a guardianship for the proposed ward. If a permanent guardian is appointed, the guardian is the proper party to the divorce on behalf of the proposed ward. Ultimately, the circumstances and the level of incapacity of the proposed ward will be a driving factor as to how to proceed in each individual case.

Other than procedural and practical issues that may arise during guardianship-divorce proceedings, there are also ethical issues when working with a client who may lack capacity. Rule 1.17 of the Texas Disciplinary Rules of Conduct provides that if an attorney reasonably suspects a client to have diminished capacity, the attorney may take reasonably necessary protective action such as seeking the appointment of a guardian or attorney ad litem for the client or submitting an information letter to a court with jurisdiction to initiate a guardianship proceeding for the client. However, practitioners should be warned that transforming your role from advocate to applicant with respect to seeking a guardianship for your client may create a conflict of interest and prohibit continued representation in the divorce proceeding.

Practitioners should also be aware of circumstances when a guardianship or divorce proceeding is used as a tool to retaliate against the other spouse. For example, a client may retain you to divorce his or her spouse and after the divorce proceeding has been initiated, the other spouse files for a guardianship over your client claiming your client lacks capacity to even seek a divorce. Is the spouse retaliating or does your client truly lack capacity?

As the “baby boomer” generation ages and the elderly population increases, practitioners can expect to see an increase in the overlap of guardianships and divorce proceedings, and for some of the circumstances and issues discussed in this article to come across their desk. And as this article highlights, there are procedural nuances to guardianships and divorce proceedings that can become even more complicated when these two practice areas intersect. Although Benavides and Graham provide some guidance for practitioners when they find themselves caught in-between a guardianship and divorce proceeding, there are still jurisdictional and practical issues that these cases do not address. Until such issues are addressed by the legislature or more case law, practitioners should be familiar with the basics of guardianship law in the event a divorce proceeding turns in an issue of one spouse’s capacity, or lack thereof.

[1] Tex. Est. Code Ann. § 1001.001.

[2] Tex. Est. Code Ann. § 1001.003.

[3] Tex. Est. Code Ann. § 1002.017.

[4] Tex. Est. Code Ann. § 1101.001 (guardianship proceeding initiated by application); Tex. Est. Code Ann. § 1102.003 (guardianship proceeding initiated by filing an information letter with the court).

[5] Tex. Est. Code Ann. § 1101.001.

[6] Tex. Est. Code Ann. § 1022.001.

[7] Tex. Est. Code Ann. § 1022.005.

[8] Tex. Est. Code Ann. § 1022.002(a).

[9] Tex. Est. Code Ann. § 1022.002(b).

[10] Tex. Const. art. V, § 8; see also Tex. Gov’t Code Ann. § 24.007.

[11] Blenkle v. Blenkle, 674 S.W.2d 501, 503 (Tex. App—El Paso 1984, no writ).

[12] Tex. Gov’t Code Ann. § 25.003(c)(1).

[13] See Tex. Gov’t Code Ann. §§ 24.601–24.644.

[14] Tex. Gov’t Code Ann. § 24.024.

[15] Tex. Est. Code Ann. § 1022.003.

[16] Tex. Est. Code Ann. § 1022.005; Tex. Const. art. V, § 8; Tex. Gov’t Code Ann. § 24.007.

[17] See In re King, 478 S.W.3d 930, 933 (Tex. App.—Dallas 2015, orig. proceeding) (when a claim asserted in a second suit is outside the jurisdictional limits of the court where the first suit was filed, the first court cannot assert dominant jurisdiction over the claim in the second suit).

[18] Tex. Est. Code Ann. § 1022.007; In re Graham, 971 S.W.2d 56, 59 (Tex. 1998).

[19] In re Graham, 971 S.W.2d at 57.

[20] Id. at 60.

[21] Id.

[22] Benavides, 2025 WL 1197404, at *13.

[23] Tex. Est. Code Ann. § 1054.001.

[24] Tex. Est. Code Ann. § 1054.006.

When Carlos Benavides died in December 2020, he left behind more than just a wealthy estate—he sparked a legal challenge that would force Texas courts to confront one of family law’s most divisive questions.

For over a century, American courts have wrestled with a fundamental question: Can someone else decide to end your marriage when you’re no longer capable of making that decision yourself?

The question has split American courts into two distinct philosophies. The Traditional Majority views marriage as so intensely personal that only spouses themselves can choose dissolution. Wyoming’s decision in Flory v. Flory, 527 P.3d 250, 252 (Wyo. 2023), exemplifies this approach: divorce is “too personal and volitional to be pursued at the pleasure or discretion of a guardian.” The Progressive Minority argues this approach leaves vulnerable adults defenseless. Illinois’s decision in Karbin v. Karbin ex rel. Hibler, 364 Ill. Dec. 665, 977 N.E.2d 154, 162 (2012), captures modern thinking: guardians should make “all types of uniquely personal decisions that are in the ward’s best interests, including the decision to seek a dissolution of marriage.” These courts emphasize that denying guardian divorce authority can trap incapacitated individuals in exploitative marriages.

Into this national divide stepped the Texas Supreme Court in In re Marriage of Benavides, 2025 WL 1197404 (Tex. Apr. 25, 2025), charting an entirely new path forward.

From Laredo to the Supreme Court: The Benavides Story

Carlos “C.Y.” Benavides Jr., a descendant of Laredo’s founder and beneficiary of substantial mineral trusts, married his fourth wife, Leticia Russo, in 2004. They signed agreements keeping all assets separate (a decision that would prove crucial to the later litigation). Seven months later, Carlos filed for divorce, but five months after that, doctors diagnosed him with dementia. The divorce was dismissed, but legal warfare had begun.

As Carlos’s condition worsened, competing narratives emerged. Leticia claimed Carlos gave her “full authority” over his accounts, repeatedly saying “todo lo mío es tuyo”—“all that I have is yours.” Id. at *2. Carlos’s daughter, Linda, painted a darker picture: systematic exploitation of an incapacitated man.

The family dysfunction erupted in 2011. Linda filed for guardianship while Carlos signed a new will leaving everything to Leticia. The court found Carlos totally incapacitated and appointed Linda as guardian. In 2018, Linda moved Carlos from his home with Leticia and filed for divorce on his behalf, claiming they had lived apart for over three years. The trial court granted the divorce in September 2020, but Carlos died two weeks later, launching the appeal that would reach the Texas Supreme Court. Id. at *1-4.

The Benavides Framework

When Benavides reached the Texas Supreme Court, many expected a definitive ruling that would finally resolve decades of uncertainty. Instead, the Court delivered something far more sophisticated—and arguably more frustrating: crucial guidance wrapped in judicial restraint.

Rather than deciding whether a guardian may initiate a divorce on behalf of a ward, the Court explicitly declined to “definitively decide” the issue. Id. at *14. It characterized the matter as “the very type of policy choice on which we consistently defer to the Legislature.” Id. at *12. The message was clear: Courts interpret law; legislatures make policy.

Yet while dodging the core question, the Court created something entirely new: a procedural framework that would govern guardian divorces if such authority exists. The framework requires two crucial safeguards. First, express guardianship court authorization—guardians cannot rely on general litigation authority but must obtain specific authorization for divorce proceedings. Second, dual best-interest findings—both the guardianship court and family court must independently find that the divorce serves the ward’s best interests and promotes their well-being.

Most significantly, the Court explicitly invited legislative action, noting that “the Legislature may wish to consider amending the Estates Code or the Family Code to plainly express its policy choice.” Id. at *13.

But the decision exposed philosophical divisions among the justices. Chief Justice Blacklock’s concurring opinion revealed the moral complexity underlying the issue: “Marriage pre-dates and transcends our law,” he wrote. “Marriage is a unique, natural relationship reflected in the law and recognized by the law, but it was not created by the law.” Id. at *15 (Blacklock, C.J., concurring). He continued, “Whether I want to be married and whether somebody thinks I should be married are two completely different questions,” and “only the former has any bearing on whether I am or will remain married.” Id. at *18. This reflects the traditionalist view that some decisions are simply too personal for third-party determination.

Where Texas Goes From Here

Benavides offers conditional clarity—a detailed framework awaiting someone to decide its purpose. If guardian-initiated divorces are to be allowed, the case lays out a meticulous path: formal court approval, compelling evidence of best interest, and layered judicial oversight. It is a far cry from ordinary divorce, and intentionally so.

Now, the Legislature must decide whether to follow that map, redraw it, or leave it unmarked. It can affirm this new route with statutory safeguards, close the door entirely, or continue allowing families to operate amid legal uncertainty.

The Court’s decision may be seen as measured restraint or missed opportunity. Yet in declining to declare a definitive rule, the justices extended an invitation: for lawmakers to finish what the judiciary could only begin. In doing so, they handed families something rare in such cases—structure, if not resolution.

For now, Benavides remains a decision in waiting: part blueprint, part open question. But in a realm long governed by silence and uncertainty, even that is progress.

A new Supreme Court decision creates potential traps for the unwary and gives the Internal Revenue Service (“IRS”) nationwide power to leave a taxpayer without a remedy to contest certain collection actions. Importantly, while a Collection Due Process (“CDP”) action is pending, taxpayers should ensure to the extent possible that no refunds are generated for other tax years as the IRS may seize these amounts to satisfy the liability at issue in the CDP, eliminating the taxpayer’s right to contest that liability. In Commissioner v. Zuch, with Justice Barrett delivering the majority opinion, the Supreme Court held that the United States Tax Court (the “Tax Court”) lacked jurisdiction under Internal Revenue Code (“IRC”) Section 6330 to resolve disputes between the taxpayer and the IRS when the IRS is no longer pursuing a levy. Instead, the taxpayer’s remedy in such cases is to file a suit for a refund against the IRS in federal district court. Taxpayers with similar ongoing collections issues should immediately identify refund deadlines and file refund claims with the IRS (on a protective basis or otherwise) before the statute of limitations runs out and they are potentially left with no recourse.

In Zuch, for the 2010 tax year, Jennifer Zuch (“Taxpayer”) and her then-spouse separately filed tax returns. After receiving notice that the IRS intended to levy on her property to collect an unpaid tax liability, Taxpayer requested a CDP hearing under IRC Section 6330. At the CDP hearing, Taxpayer argued that her account should have been credited with estimated taxes that were already paid to the IRS. The IRS Appeals Officer disagreed and sustained the levy action because the estimated tax payments had already been credited to her then-spouse. Taxpayer then appealed to the Tax Court, however, while this process was occurring over several years, Taxpayer filed multiple tax returns with overpayments that entitled Taxpayer to a refund. Each time, instead of issuing a refund, the IRS offset said amounts against Taxpayer’s outstanding tax liability for the 2010 tax year. Eventually, Taxpayer’s balance was zero, so the IRS moved to dismiss the Tax Court proceeding as moot. The Tax Court held that it lacked jurisdiction over the appeal because there was no longer a justification for the IRS to pursue a levy. Taxpayer appealed the Tax Court decision, and the Third Circuit Court of Appeals agreed with Taxpayer, holding that the IRS’s decision not to pursue a levy did not moot the Tax Court proceeding. The Third Circuit’s decision created a split with the Fourth and the D.C. Circuits.

The Supreme Court reversed the decision of the Third Circuit and remanded the case for further proceedings consistent with the opinion, holding that a “determination” within the meaning of IRC Section 6330(d)(1) “refers to the binary decision whether a levy may proceed.” The Court reasoned that IRC Section 6330(c)(3), which sets forth the basis for the Appeals Officer’s “determination,” states that IRS Appeals “shall take into consideration” three factors, including the existence or amount of the underlying tax liability—in this case, whether the estimated tax payments were properly applied. Thus, those “considerations” are only inputs which result in the “determination” of the IRS Appeals Officer sustaining the levy, i.e., the output. The Supreme Court further reasoned that IRC Section 6330(e) only goes so far as to confer on the Tax Court the authority to issue an order enjoining a levy but no authority to order a refund or issue a declaratory judgment to resolve a tax liability dispute. The Tax Court, therefore, only has jurisdiction to review the “determination” and has no authority to resolve tax disputes that no longer have a connection to an ongoing levy. Finally, the Supreme Court reminds the Taxpayer that she does not lack recourse against the IRS and should “[r]ecall the default rule: Taxpayers cannot challenge disputes about tax liability without first paying the disputed taxes.” Taxpayer may file a post-deprivation suit for a refund (citing 28 U.S.C. §§ 1346(a)(1), 1491(a)(1)).

In light of the Supreme Court’s decision, Taxpayers should be aware that there first must be a levy action for the Tax Court to exercise jurisdiction under IRC Section 6330. That is, there will need to be an unpaid tax because otherwise there cannot be justification for a levy. According to the majority opinion, the Taxpayer in Zuch had a few options. Because the Taxpayer in Zuch had overpayments in subsequent years, she ended up in the same place—filing a refund suit—as she would have had she initially paid the tax when due. Had Taxpayer not had overpayments in subsequent years, the unpaid tax liability and the levy would have remained, and the Tax Court would have retained jurisdiction to decide whether the levy could move forward or whether to enjoin the levy. Importantly, while the Supreme Court did not cut off a taxpayer’s recourse under either circumstance, it explicitly sent the message that “[t]he Tax Court is a court of limited jurisdiction.” (citing Commissioner v. McCoy, 484 U. S. 3, 7 (1987); I.R.C. § 7442).

In addition, although the decision is rendered in the context of the Tax Court’s jurisdiction, its rationale may also be relied upon by IRS Appeals Officers looking to deny CDP hearings where the IRS has been able to collect the allegedly outstanding liabilities by offset.

In the aftermath of the ruling, similarly-placed taxpayers may find themselves in the difficult position of deciding whether to pursue a CDP proceeding knowing that the IRS could collect the liabilities at issue by offset and thereby defeat the Tax Court’s jurisdiction (as in Zuch). Or, as the dissenting opinion by Justice Gorsuch points out, the IRS could potentially drop the proposed levy at any point in the proceedings and strip the taxpayer of their Tax Court remedy.

The alternative that the majority opinion provides is for a taxpayer to pay the liabilities at issue and then file a timely administrative claim with the IRS, followed by a timely suit for refund in federal district court. However, when a pre-payment litigation option such as IRS Section 6330 exists, the decision to use a post-deprivation remedy will not be made lightly, particularly because a refund suit requires full payment of all taxes, interest, and penalties for a tax period.

If taxpayers do choose to pursue (or continue to pursue) CDP proceedings in similar matters, it will be important to calendar any deadlines for filing an administrative refund claim, as well as a refund suit, in relation to any amounts that the IRS collects by offset. As the dissent also points out, the Taxpayer in Zuch did not timely file all her administrative refund claims while she was pursuing the CDP proceedings, leaving her potentially remediless to recoup some of her overpayments from the IRS. Hence, at a minimum, taxpayers should ensure to the extent possible that taxes for other periods are not overpaid, and even if CDP proceedings are ongoing, taxpayers should consider at least filing protective refund claims for any overpayments to preserve their rights before the statute of limitations runs out and leaves them without recourse.

It seems that the death of Chevron deference was not the end of agency deference. Almost a year after striking down Chevron deference, today the U.S. Supreme Court issued a decision on the role of judicial deference towards an agency’s fact and scope determinations. In an opinion penned by Justice Kavanaugh, the U.S. Supreme Court found that the U.S. Surface Transportation Board (the “Board”) rightfully excluded the environmental effects of upstream oil drilling and downstream oil refining when approving the construction of an 88-mile railroad line in Utah. Seven Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado, 605 U. S. ____ (2025). Contrary to the D.C. Circuit’s decision, which found that the Board was required to evaluate these impacts, the Supreme Court held that the railway project’s Environmental Impact Statement (“EIS”) complied with the National Environmental Policy Act (“NEPA”) requirements, focusing on the procedural nature of NEPA and the “textually mandated focus on the proposed action.”[1]

Despite the strong language in the opinion, likening NEPA to an overgrown “judicial oak that has hindered infrastructure development under the guise of just a little more process,” and demanding “course correction,”[2] the decision still leaves open questions on scoping of EIS. The Court aligned some guiderails stating: “A relatively modest infrastructure project should not be turned into a scapegoat for everything that ensues from upstream oil drilling to downstream refinery emissions.”[3] But the Court also recognized that in certain circumstances, other projects may be interrelated enough in time or place to require consideration.

Acknowledging the gray area in defining the project, the Court is leaving the decision to the agencies stating:

When assessing significant environmental effects and feasible alternatives for purposes of NEPA, an agency will invariably make a series of fact-dependent, context-specific, and policy-laden choices about the depth and breadth of its inquiry—and also about the length, content, and level of detail of the resulting EIS. Courts should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness.[4]

Thus, the Court is signaling a retreat from judicial interference in the scoping of a project under NEPA and voiced overall skepticism with the way NEPA has been interpreted in the past. Projects may draw parallels to this decision to justify the exclusion of upstream and downstream oil and gas impacts in their respective evaluations.

As mentioned, last June the Supreme Court ended Chevron deference in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which focused on an agency’s interpretation of legal ambiguities in federal statutes, which the Court held would now be subject to de novo review. In contrasting this case and Loper Bright, Justice Kavanaugh explained that while NEPA requires an EIS to be “detailed,” and it is the Court’s power to interpret the meaning of “detailed” (under Loper Bright), what details need to be included in an EIS is a question of fact that warrants deference to the agency. “The agency is better equipped to assess what facts are relevant to the agency’s own decision than a court is.”[5]

The Kean Miller environmental regulatory and industrial project teams are closely monitoring the impacts of this decision on currently pending EIS and developing projects.

[1] Decision at p. 16 (internal citation omitted, emphasis added).

[2] Decision at p. 13.

[3] Decision at p. 19.

[4] Decision at p. 12 (emphasis added).

[5] Decision at p. 10.

On April 9, 2025, the President issued Executive Order 14629, a sweeping initiative to rebuild the United States’ commercial shipbuilding industry, revitalize its maritime workforce, and reclaim its role as a global leader in maritime logistics and security. This order carries significant implications for shipbuilders, cargo operators, port authorities, marine investors, and maritime contractors.

Issued in the wake of mounting concerns over U.S. dependence on foreign shipbuilders—particularly China—the order calls for an all-of-government strategy to reclaim control over America’s maritime future. Here’s a detailed look at what the Executive Order entails and how it’s expected to impact the sector:

Maritime Action Plan (Sec. 3)

A centerpiece of the Order is the creation of a Maritime Action Plan (MAP), to be developed within 210 days by the Assistant to the President for National Security Affairs, in coordination with Cabinet-level departments (Defense, Commerce, Transportation, Homeland Security, Labor, State, Education) and other agencies. The MAP is designed to become the federal government’s maritime playbook—aligning funding, legislation, regulatory reform, and workforce initiatives under one coordinated strategy. The Office of Management and Budget will lead the fiscal and legislative alignment, while the MAP itself will incorporate actions outlined in 18 specific sections of the Order.

Reviving the Industrial Heart of U.S. Maritime (Sec. 4)

The Order begins by tackling the Maritime Industrial Base, which it acknowledges has suffered from decades of disinvestment. Federal agencies, led by the Department of Defense, are directed to explore use of Defense Production Act authorities and Office of Strategic Capital tools to incentivize investment in shipyards, marine repair, port infrastructure, and supply chains.

The goal is to catalyze both public and private capital to rebuild the physical and workforce infrastructure required to make U.S. shipbuilding economically viable again. Agencies must prioritize projects based on taxpayer return-on-investment, commercial and military value, and long-term workforce benefits.

Responding to China’s Dominance in Shipbuilding (Sec. 5)

One of the most pointed sections of the Order directly addresses China’s aggressive targeting of global shipbuilding and logistics sectors. The U.S. Trade Representative is empowered to advance its Section 301 investigation and potentially impose tariffs or other trade actions on PRC-linked cargo equipment, particularly cranes and handling devices.

These measures reflect growing bipartisan concern that China’s subsidized shipbuilding poses both an economic and national security threat—especially at strategic ports. Legal and compliance implications for maritime importers and logistics clients will be significant.

Closing Loopholes in U.S. Port Fee Collections (Sec. 6)

For years, cargo routed through Canadian or Mexican ports has offered a backdoor around the Harbor Maintenance Fee. This Order closes that loophole. The Department of Homeland Security is instructed to require that all foreign cargo entering the U.S.—whether directly or via land borders—be subject to full Customs and Border Protection (CBP) processing and applicable fees. If cargo is not “substantially transformed” before entering from Canada or Mexico, it will face not only full HMF charges but also an added 10% service fee to offset enforcement costs.

Turning to Allies for Maritime Investment and Trade Alignment (Secs. 7 & 8)

Recognizing that rebuilding U.S. maritime capacity can’t be done in isolation, the Order calls for coordinated engagement with allies and partners. The Departments of State and Commerce, along with the Trade Representative, are tasked with aligning global trade policies related to the maritime sector—including coordinated tariffs or parallel enforcement efforts.

Simultaneously, the Department of Commerce is directed to explore investment incentives for allied shipbuilders willing to open facilities or fund upgrades in the United States—particularly those that bolster U.S. shipyard capacity.

Creating a Sustainable Funding Engine: The Maritime Security Trust Fund (Sec. 9)

One of the more transformative proposals involves the creation of a Maritime Security Trust Fund, administered through the Office of Management and Budget and supported by the Department of Transportation. This dedicated funding source would provide stable, long-term capital for the programs under the MAP—reducing reliance on annual budget negotiations and increasing predictability for industry partners. The fund could be sourced from existing tariff revenues, penalties, fees, or future maritime excise tax reforms.

A New Investment Program for U.S. Shipbuilding (Sec. 10)

The Order directs the Department of Transportation to propose a new shipbuilding incentives program, one that offers greater flexibility than current initiatives like the Small Shipyard Grant Program or Title XI Federal Ship Financing. Potential support mechanisms include capital improvement grants, vessel construction loans, and guarantees that comply with the Federal Credit Reform Act. This is designed to create a reliable financing environment for commercial shipyards and repair facilities ready to modernize or scale operations.

Establishing Maritime Prosperity Zones (Sec. 11)

To draw new capital to historically overlooked areas, the administration proposes the establishment of Maritime Prosperity Zones—tax-advantaged investment areas modeled on the Opportunity Zones created in 2017. These would include non-coastal and inland regions, such as the Great Lakes and Mississippi River corridors, which have untapped industrial potential. The Departments of Commerce, Treasury, Transportation, and Homeland Security will jointly develop the plan.

Reinforcing U.S. Cargo Shipping and Preference Laws (Sec. 12)

The Department of Transportation is charged with preparing a full inventory of federal programs, cargo preference laws, and tax/regulatory tools that can be used to grow domestic shipping. This includes programs like the Maritime Security Program, Tanker Security Program, and various maritime academy supports.

It also calls for a review of cargo preference waiver processes to ensure more U.S.-flagged and built vessels are being used in federal shipping contracts, especially in military logistics.

Modernizing Mariner Training and Expanding Educational Pipelines (Sec. 13)

Executive Order 14269 calls for a comprehensive review and reform of the nation’s mariner training and credentialing systems.

Within 90 days, a coalition of federal agencies—including the Departments of State, Defense, Labor, Transportation, Education, and Homeland Security—is required to deliver a coordinated report with recommendations to address workforce challenges in the maritime sector. These recommendations will focus on aligning educational institutions, technical training programs, and credentialing pathways with the anticipated national demand.

Reviving the U.S. Merchant Marine Academy (Sec. 14)

The United States Merchant Marine Academy (USMMA) is slated for urgent upgrades. Within 30 days, the Department of Transportation must begin deferred maintenance projects and finalize a long-term facilities master plan, followed by a five-year capital improvement plan in coordination with the Department of Government Efficiency. These steps are framed as essential to ensure the U.S. maintains a world-class maritime education institution.

Streamlining Ship Procurement and Deregulating Bottlenecks (Secs. 15 & 16)

A recurring complaint from U.S. shipbuilders is procurement complexity and regulatory drag. The Order addresses this by requiring the Departments of Defense, Commerce, Homeland Security, and the National Science Foundation to propose reforms that:

  • Reduce design and review delays
  • Encourage modular shipbuilding
  • Rely more on commercial acquisition practices and broad industry standards

Concurrently, agencies must conduct internal reviews to identify deregulatory opportunities, aligned with Executive Order 14192, to eliminate red tape that blocks innovation or raises costs unnecessarily.

Reinforcing Strategic Capacity: Fleet and Arctic Readiness (Secs. 17 – 21)

To ensure maritime readiness in times of crisis and position the U.S. as a global leader in strategic waterways, the Executive Order outlines several initiatives designed to expand and reinforce the operational fleet.

Growing the U.S.-Flagged Fleet (Section 17)

The Department of Transportation, in coordination with the Department of Defense, is required to propose a legislative framework that increases the number of U.S.-flagged commercial vessels available for international trade. The goal is to ensure sufficient tonnage and cargo capacity under the U.S. flag that can be rapidly mobilized during national emergencies.

  • Incentives under consideration include:
  • Subsidies to encourage construction of militarily useful commercial ships;
  • Expanded financial support for modifications that make commercial vessels deployable for defense purposes;
  • Policies that boost the number of U.S.-built, crewed, and flagged vessels participating in global trade.

Securing Arctic Waterways (Section 18)

With Arctic shipping routes becoming more navigable due to climate change, the Departments of Defense, Transportation, and Homeland Security, along with the U.S. Coast Guard, are instructed to develop a national Arctic Maritime Strategy. This strategy will define the vision, goals, and risk posture necessary to secure these high-stakes transit lanes and support future economic activity in the region.

Shipbuilding Capacity Review (Section 19)

The Order mandates a review of federal shipbuilding for the Army, Navy, and Coast Guard, to identify ways to:

  • Increase competition among domestic shipbuilders;
  • Reduce systemic cost overruns and production delays;
  • Expand participation in subsurface, surface, and unmanned vessel programs.

Separate, prioritized recommendations for each branch must be submitted to the President within 45 days.

Inactive Reserve Fleet Assessment (Section 21)

Finally, to guarantee strategic readiness, the Department of Defense must review and issue guidance on the maintenance, mobilization, and funding structure of the U.S. inactive reserve fleet. This review will inform future MAP decisions to ensure that reserve vessels are prepared for activation in times of conflict or disaster.

Closing Observations

Executive Order 14269 is perhaps the most ambitious federal directive aimed at rebuilding American maritime capacity since World War II. It addresses infrastructure, policy, law, workforce, and trade in a single integrated blueprint.

It also creates opportunities—particularly in financing, infrastructure modernization, ship procurement, and cargo law compliance—for companies operating across the shipping, port operations, defense contracting, and educational sectors.

Industry stakeholders should begin preparing for rapid federal engagement, new funding pathways, and heightened enforcement of trade and cargo preference laws.

On April 16, 2025, Senator Schwertner moved to suspend the Texas Senate’s regular order of business to take up and consider Committee Substituted Senate Bill 30 (“CSSB 30”). This motion prevailed by a vote of 20 Yeas and 11 Nays. During this session, 5 different Senators proposed 6 total amendments to CCSB 30. Senator Schwertner’s 2 amendments were the only 2 adopted of the 6.[1] A summary of Senator Schwertner’s 2 amendments are as follows.

Floor Amendment No. 1:

  1. First, this Amendment revises CSSB 30’s definition for “mental or emotional pain or anguish.” CCSB 30 defined “mental or emotional pain or anguish” as “grievous and debilitating angst, distress, torment, or emotional suffering or turmoil that causes a substantial disruption in a person’s daily routine.” This Amendment replaces the evidentiary requirement of showing “a substantial disruption in a person’s daily routine,” though in accordance with Texas Supreme Court precedent, with “a substantial disruption in a person’s life.”
  2. Second, this Amendment provides for a differing evidentiary standard for “physical pain and suffering” in cases of sexual assault or abuse.
  3. Third, this Amendment adds licensed professional counselors and psychologists to the inclusive list of who constitutes a provider under this subchapter.
  4. Fourth, this Amendment adds a provision that establishes that the Texas Rules of Evidence shall continue to govern questions of admissibility in any action under this subchapter, except for evidence that is rendered admissible as a matter of law under Section 41.107, namely:
    • All statements or invoices from health care providers for services related to the injury in the lawsuit.
    • Any letter of protection connected to the lawsuit.
    • Any written agreement for refunds, rebates, or payments to anyone involved in the claim (e.g., payor, injured person, attorney, etc.).
    • If the injured individual was referred to a health care provider for services by the injured individual’s attorney and the provider will provide testimony that is presented to the trier of fact in the action, then (1) an anonymized list of persons referred by the attorney to the provider in the preceding two years; (2) the date and amount of each payment made to the provider in the preceding two years by or at the direction of the attorney; (3) if applicable, each person anonymously described under Subparagraph (1) on whose behalf a payment described by Subparagraph (2) was made; and (4) other aspects of any financial relationship between the attorney and the provider.
    • Treatment guidelines and drug formularies approved by the Workers’ Compensation Division of the Texas Department of Insurance as evidence relating to the necessity of health care services provided to the injured individual.

Floor Amendment No. 2: This Amendment allows for the amount of health care costs to be adjudicated based upon the May 1, 2025 Medicare fee schedule as adjusted by the CPI between May 1, 2025 and the date on which the service was provided to the induvial or the date the trial commences, depending on which section of the bill is appropriate. This Amendment seeks to allow the limit on evidence for medical expenses that exceed 300% of the Medicare fee schedule to account for inflation in the context of future medical expenses.

After accepting Senator Schwertner’s amendments, the Senate took a vote and passed Amended CSSB 30 by the following vote: Yeas 20 and Nays 11.

[1] Senator Johnson, Senator West, Senator Gutierrez, and Senator Eckhardt each proposed amendments to CSSB 30 on April 16. In general, these amendments sought to challenge: the disclosure and admissibility requirements for medical referrals by legal practitioners arguing that the prejudicial value of the same would outweigh any probative value; the constitutionality of limiting non-economic damages; and limiting the categories of non-economic damages on a jury verdict. The Senate denied each amendment in a vote of 20 Nays and 11 Yeas.