Warren Kenneth Paxton, Jr., in His Official Capacity as Texas Attorney General, and the State of Texas v. Annunciation House, Inc.

Supreme Court of Texas

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No. 24-0573

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Warren Kenneth Paxton, Jr., in his Official Capacity as

Texas Attorney General, and the State of Texas,

Appellants,

v.

Annunciation House, Inc.,

Appellee

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On Direct Appeal from the

205th Judicial District Court, El Paso County, Texas

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Argued January 13, 2025

JUSTICE YOUNG delivered the opinion of the Court.

Justice Sullivan did not participate in the decision.

The attorney general has alleged that Annunciation House, Inc.,

an El Paso-based nonprofit corporation, violates Texas law by harboring

illegal aliens. Invoking his statutory and constitutional authority, he has

sought to examine Annunciation House’s records to verify this allegation

and to initiate quo warranto proceedings that, if the allegations are

proven, could lead to the revocation of Annunciation House’s charter and

preclude it from operating. Bound up in the dispute are a host of serious

questions: What kind of conduct constitutes unlawfully harboring illegal

aliens? Has Annunciation House engaged in such conduct? Under what

conditions may the attorney general demand access to Annunciation

House’s records? Can harboring illegal aliens provide a valid basis for the

attorney general to file a quo warranto action? Does Texas law that

protects religious liberty forbid the attorney general from proceeding

against Annunciation House under these circumstances? And more still.

Ordinarily, before this Court addresses such significant issues, the

parties would have developed a full record and litigated the disputed

questions in the trial court and then the court of appeals, after which the

disappointed side would file a petition for review. This case, however,

comes to the Court as a direct appeal because, very early in the litigation,

the trial court held that several Texas statutes are unconstitutional. We

accordingly must address this dispute far earlier than we typically would.

We conclude that the trial court erred in its constitutional

holdings. We likewise conclude that the court’s related injunctions, which

prevent the attorney general from even filing a quo warranto action, were

premature at best. Our primary holding is that the attorney general has

the constitutional authority to file his proposed quo warranto action,

which simply allows the usual litigation process to unfold. It is too early

for us, or for any court, to express a view about the merits of the

underlying issues. Perhaps the case will terminate quickly based on

evidentiary or legal grounds; perhaps it will go to trial. Perhaps the Texas

Religious Freedom Restoration Act will affect the proceedings in an

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outcome-determinative way; perhaps that statute will end up playing no

such role. We resolve only what we must to dispose of today’s appeal, and

beyond that, we do not foreclose the case’s development on remand.

I

Annunciation House is a charitable organization based in El Paso,

Texas, that operates several shelters around the city. Founded in 1976,

Annunciation House has long worked with the Roman Catholic Diocese

of El Paso to provide shelter to the homeless, particularly immigrants

and refugees crossing over from Mexico. Called to serve the needy by its

founders’ Catholic faith, Annunciation House provides food and housing

to its guests regardless of their immigration status.

On February 7, 2024, three state officials arrived at one of

Annunciation House’s shelters with a formal “Request to Examine” its

records. The officials informed Annunciation House’s director, Ruben

Garcia, that the request covered a variety of internal files, that production

must be immediate, and that failure to comply would result in forfeiture

of Annunciation House’s right to do business in Texas as well as a criminal

penalty. See Tex. Bus. Orgs. Code §§ 12.155–.156. The officials agreed

that Garcia could consult with an attorney before complying and, after

providing a written copy of the request, departed the premises. Later that

day, Annunciation House’s attorney informed the attorney general’s office

that the shelter would respond to the record request within thirty days;

the attorney general, however, demanded compliance by the next day. In

response, Annunciation House turned to a district court in El Paso County

to request a temporary restraining order and a declaratory judgment that

the request violated Annunciation House’s constitutional rights.

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The trial court granted the requested temporary restraining order

and set a hearing to consider granting a temporary injunction. The

attorney general then filed a “Plea to the Jurisdiction, Answer, and

Motion for Leave to File [[Proposed]] Counterclaim in the Nature of

Quo Warranto.”

Annunciation House then asked the trial court to extend the

temporary restraining order, and the court granted the request. The court

reset the hearing to March 7, when it would consider Annunciation

House’s requests for declaratory relief and a temporary injunction

alongside the attorney general’s responsive plea to the jurisdiction and

motion for leave to file a quo warranto action. Three days after the hearing,

the trial court held that the Rules of Civil Procedure superseded the

attorney general’s original records request, meaning that any production

of records would now take place subject to discovery requests and rulings.

The trial court stated that this mooted Annunciation House’s requested

injunction against being forced to immediately produce the records.

For the next several months, the parties engaged in discovery

related to the two live pleadings: (1) Annunciation House’s request for

declaratory relief and a temporary injunction against further allegedly

unconstitutional records requests; and (2) the attorney general’s request

for a temporary injunction and his motion for leave to file a quo warranto

counterclaim seeking revocation of Annunciation House’s charter.

While the attorney general’s initial petition and counterclaim relied on

Annunciation House’s failure to comply with the records request, his

amended filings accused Annunciation House of engaging in “systematic

conduct that constitutes illegal alien harboring and operation of a stash

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house.” On this new ground, the attorney general again requested a

temporary injunction shutting down the shelter’s operations and renewed

his request for leave to file a quo warranto action seeking to revoke

Annunciation House’s charter.

Annunciation House moved for summary judgment. In two orders,

the trial court granted the motion and denied the attorney general’s

requests for an injunction and for leave to file a quo warranto action. In

granting summary judgment, the trial court held that the records-request

statute, codified at Business Organizations Code §§ 12.151–.152, is

facially unconstitutional under the First and Fourth Amendments to the

U.S. Constitution and that the request made of Annunciation House in

particular constituted religious harassment under Government Code

§ 2400.002. The trial court therefore granted declaratory relief and an

injunction in favor of Annunciation House, which included the

requirement that any further records requests first be filed with that

court for precompliance review.

In denying the attorney general’s requested injunction and

motion for leave to file a quo warranto action, the trial court first held

that the attorney general failed to establish the required grounds for a

quo warranto proceeding under Civil Practice and Remedies Code

§ 66.002(d). It then held that the allegations of sheltering undocumented

migrants, even if true, did not constitute illegal harboring under Penal

Code § 20.05(a)(2) or § 20.07(a)(1), citing the Fifth Circuit’s decision in

Cruz v. Abbott, 849 F.3d 594, 597–602 (5th Cir. 2017). The court ruled

in the alternative that §§ 20.05(a)(2) and 20.07(a)(1) are both field and

conflict preempted by federal law, and thus unenforceable, including by

5

means of a quo warranto action.

As to quo warranto generally, the trial court held that Business

Organizations Code § 11.301(a)(5) provides the exclusive means of

terminating a corporation’s existence for criminal violations, thus

abrogating quo warranto in this area. Finally, as applied to Annunciation

House, the trial court ruled that the quo warranto counterclaim would

render both the quo warranto statute (§ 66.001) and the underlying Penal

Code provisions (§§ 20.05(a)(2) and 20.07(a)(1)) unconstitutionally vague

and would also violate the Texas Religious Freedom Restoration Act

(which we refer to as RFRA) by impermissibly burdening the shelter’s

religious activity. See Tex. Civ. Prac. & Rem. Code § 110.003. Absent a

lawful cause of action, let alone a probable right to relief, the trial court

denied the attorney general’s request to file the quo warranto counterclaim

and the accompanying injunction.

A later order disposed of all other claims, reducing the orders

described above into a final, appealable judgment. The attorney general

appealed both orders directly to this Court, as authorized where “a trial

court grant[s] or den[ies] an . . . injunction on the ground of the

constitutionality” of a state statute. Tex. Gov’t Code § 22.001(c); see also

Tex. R. App. P. 57. We noted probable jurisdiction over the appeal, which

challenges the following five holdings of the trial court:

(1) Business Organizations Code § 11.301(a)(5) abrogates the

attorney general’s authority to bring quo warranto actions;

(2) the attorney general fails to adequately allege violations of

Penal Code § 20.05(a)(2) or § 20.07(a)(1);

(3) those provisions of the Penal Code are unconstitutionally vague

as applied to Annunciation House or are preempted by federal

law;

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(4) the injunction that the attorney general requested and the quo

warranto action he sought to file violate RFRA; and

(5) Business Organizations Code §§ 12.151 and 12.152 do not

provide for precompliance review and are thus facially

unconstitutional.

We address each argument, turning first to those pertaining to

quo warranto in Part II and then to the arguments about the requested

injunctions and the records request in Part III.

II

This Court has not addressed the nature of a quo warranto action

for more than a century. Given the procedure’s relative obscurity, we

briefly consider its history before addressing the parties’ arguments.

A

The earliest recorded quo warranto actions date from the thirteenth

century, when King Edward I ascended the throne following several

wars between the crown and rebellious barons. As part of a campaign

to reduce feudal power and cement royal control, Edward ordered an

investigation into the baronial “franchises.” 1 W.S. Holdsworth, A

History of English Law 87–88 (3d ed. 1922). “Franchises,” which were

then called “liberties,” “were a miscellaneous lot,” characteristically

difficult to systematize given the feudal context in which they arose;

“[m]ost liberties,” however, “gave their owners the right to perform some

[royal] function” or to “take some profit which normally belonged to the

King.” Donald W. Sutherland, Quo Warranto Proceedings in the Reign

of Edward I, 1278-1294, at 2–3 (1963). Motivated to claw back his royal

privileges (and, perhaps more importantly, the profits they reaped),

Edward “sent out commissioners to enquire into these usurpations of

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the royal rights.” 1 Holdsworth, supra, at 88.

When the supposed abuses of royal power were documented,

Edward’s need for a new legal tool to go about righting them led to the

first well-documented use of the writ of quo warranto. Issued by royal

courts or “eyres” traveling throughout England, the writ “enquire[d] by

what authority”—in Latin, quo warranto—a person “who claimed or

usurped any office, franchise, liberty, or privilege belonging to the crown”

maintained his right to do so. Id. at 229–30. Absent some proof of that

right, usually in the form of a charter directly from the crown, or upon

proof of “either mal-user or non-user,” the eyre would revoke the claimed

franchise back to the crown. Id. at 89. Following numerous high-profile

revocations, and amid mounting resistance from aggrieved barons,

Edward relented, first promulgating the Statute of Gloucester in 1278 and

then the Statute of Quo Warranto in 1290. Id. at 88. Together, these

allowed that proof of “possession [of a franchise] without interruption from

the beginning of Richard I’s reign” would adequately answer quo warranto

and avoid revocation. Id. Nevertheless, “[t]he theory of the king and his

lawyers, that no franchise could exist except by virtue of a royal grant,

became the law for the future.” Id.; see also Sutherland, supra, at 167.

Quo warranto lived on well past Edward’s reign, and writs of quo

warranto were issued from the medieval period onward. Over time,

however, the writ of quo warranto gave way to the “information in the

nature of quo warranto.” Comment, Quo Warranto and Private

Corporations, 37 Yale L.J. 237, 238 (1927). The information in the

nature of a writ of quo warranto was, as its name suggests, “originally a

criminal proceeding designed to punish the usurper of a franchise,” akin

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to the criminal information still used in Texas criminal procedure. See

W.S. Holdsworth, The History of the Criminal Information, 1 Can. Bar

Rev. 300, 301 (1923); see also Ex parte Scott, 123 S.W.2d 306, 311 (Tex.

1939) (collecting cases on the requirement to file “an information or

complaint in writing” in criminal cases). Despite its criminal-law roots,

however, the information in the nature of quo warranto “developed into

a purely civil proceeding” and remains “exclusively” civil today.

Holdsworth, supra, at 302.

The primary advantage of the formal shift to “the information”

from “the writ” was that the attorney general could directly file the

information with the Court of King’s Bench, thus easing the burdens of

the cumbersome traveling eyre and attendant procedure of the old

prerogative writ. Cf. 1 Holdsworth, supra, at 229–30. No other

substantive difference developed, so over time, “the information of quo

warranto . . . became identical in scope with the older remedy, and the

two have for all practical purposes become indistinguishable.” Quo

Warranto and Private Corporations, supra, at 238–39 (footnote omitted).

Under either procedure, defendants had to show “by what authority”

they purported to exercise some governmentally sanctioned power.

As the common law of corporations developed during the sixteenth

and seventeenth centuries, private corporations—which existed only

through express legislative authorization—were also subject to quo

warranto actions. See 9 Holdsworth, supra, at 65 (“That a corporation

could be suspended or dissolved, on proceedings taken against it by the

crown for misuse or abuse of its privileges, was a very old principle of the

common law.”). Blackstone documented this use of quo warranto,

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triggered by “negligence or abuse of [corporate] franchises; in which case

the law judges that the body politic has broken the condition upon which

it was incorporated,” necessitating a quo warranto action “to enquire by

what warrant the members now exercise their corporate power, having

forfeited” it. 1 William Blackstone, Commentaries *473. This

understanding of corporate law and quo warranto subsequently followed

English lawyers to the American colonies. Several colonies, in fact, were

founded as corporations, subject to quo warranto proceedings by the

crown. Cf. Viola Barnes, The Dominion of New England: A Study in

British Colonial Policy 23 (1923). Famously, the Court of King’s Bench

under Charles II issued a writ of quo warranto against the Massachusetts

Bay Colony, thus revoking its charter in 1683 amid a period of friction

with the crown. See id.

Quo warranto survived the American Revolution, too, with the

People replacing the king as sovereign and a concomitant emphasis not

on the abuse of a royal privilege but on a corporation’s “special contractual

relationship with the incorporating state.” Herbert Hovenkamp, The

Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593,

1659 (1988). Nevertheless, forfeiture of a corporate charter (or

“franchise”) remained a possible result of quo warranto actions, justified

on grounds of negligence or abuse—that is, the same ground Blackstone

had documented in the eighteenth century. 1 Blackstone, supra, *473.

As Justice Story put it in 1815, “a private corporation created by the

legislature may lo[se] its franchises by a misuser or a nonuser[,] . . . and

they may be resumed by the government under a judicial judgment upon

a quo warranto to . . . enforce the forfeiture.” Terrett v. Taylor, 13 U.S. (9

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Cranch) 43, 51 (1815). Justice Story described this rule as “the common

law of the land” and “a tacit condition annexed to creation of every such

corporation.” Id. On the same theme, Chief Justice Taney referred to

franchises as “special privileges conferred by government upon

individuals, . . . which do not belong to the citizens of the country,

generally, of common right,” meaning that “no franchise can be held

which is not derived from a law of the state.” Bank of Augusta v. Earle,

38 U.S. (13 Pet.) 519, 595 (1839).

Even as corporate law evolved over the nineteenth century, quo

warranto remained a powerful common-law tool for addressing abuse of

corporate charters. But changes in practice followed, too. For example,

fewer corporations were chartered for a single specified purpose like

building a railroad or operating a bank, as was typical in the days of

Justice Story and Chief Justice Taney. More were chartered for general

business purposes. See Hovenkamp, supra, at 1659–62. Accordingly,

“non-user”—or failure to accomplish an express charter purpose—largely

faded away as a ground for quo warranto actions. Id. Nevertheless, in

the face of growing corporate power in the late-nineteenth and early-

twentieth centuries, quo warranto was still generally regarded “as the

sole remedy to test the right of a corporation to exist and to forfeit

corporate charters and franchises on . . . grounds [of misuse or abuse].”

5 Seymour D. Thompson, Commentaries on the Law of Private

Corporations 623 (2d ed. 1910); see also Staacke v. Routledge, 241 S.W.

994, 1000 (Tex. 1922) (“An inquiry into the abuse of . . . corporate power

by the company can only be made by the state.”).

Perhaps unsurprisingly, given quo warranto’s long history and

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ubiquity in Anglo-American law, the doctrine was part of Texas law from

the beginning. In 1840, the Republic of Texas adopted “the Common Law

of England” as the “rule of decision in this Republic” so far as it conformed

to the recently adopted Constitution. Act approved Jan. 20, 1840, 4th

Cong., R.S., § 1, 1840 Repub. Tex. Laws 3, 4, reprinted in 2 H.P.N.

Gammel, The Laws of Texas 1822–1897, at 177–78 (1898). “In [that]

adoption of the common law, we adopted the remedy of quo warranto,

against corporations.” State v. S. Pac. R.R. Co., 24 Tex. 80, 116 (1859);

see also Banton v. Wilson, 4 Tex. 400, 405–07 (1849). Given the attorney

general’s existing common-law authority, no statute directing the filing

of quo warranto actions was necessary, but the legislature nonetheless

both recognized its existence and made bringing a quo warranto

information mandatory in certain circumstances. For example, an 1850

statute establishing the Texana Academy made it the attorney general’s

duty “to file an information in the nature of a quo warranto” if “at any

time the [Academy] shall violate” its charter. 3 Gammel, supra, at 694

(Act of Jan. 2, 1850).

With the adoption of the present 1876 Constitution, the People of

Texas took the further step of constitutionalizing the attorney general’s

power and duty to file quo warranto informations. At the suggestion of

one delegate, George Flournoy, Article IV, § 22 was amended to add the

following to a list of the attorney general’s duties:

and [the attorney general] shall especially inquire into the

charter rights of all private corporations, and from time to

time, in the name of the State, take such action in the courts

as may be proper and necessary to prevent any private

corporations from exercising any power, in demanding or

collecting any species of tax, toll, freight, or wharfage not

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authorized by law; and shall, whenever sufficient cause

exists, seek a practical forfeiture of such charters, unless

otherwise expressly decreed by law.

Debates in the Texas Constitutional Convention of 1875, at 163–64 (Seth S.

McKay ed., 1930). This text was slightly modified before its adoption, to

“prevent any private corporations from exercising any power or demanding

or collecting any species of tax . . . not authorized by law,” and to separate

off the final clause as a standalone sentence, beginning with “He shall,

whenever sufficient cause exists, seek a judicial forfeiture of such

charters, unless otherwise expressly directed by law[.]” Tex. Const. art. IV,

§ 22. The recorded debates do not illuminate any motivation for the

original amendment or the subsequent edits. The only further relevant

discussion appears to have concerned the fear of another delegate—John

Stayton, a future chief justice of this Court—that the new duty “would be

burdening the office of [attorney general] too much.” Debates in the Texas

Constitutional Convention of 1875, supra, at 164. In other words, there is

at least some basis for understanding the original public meaning of § 22

as authorizing a commonplace—rather than rarely exercised—power.

Just six months after the Constitution’s promulgation, the

legislature statutorily directed the attorney general to exercise his new

constitutional authority. Entitled “[a]n [a]ct to provide for the judicial

forfeiture of charters, and prescribing the duties of the Attorney-General

in relation thereto,” the statute’s first section largely copies Article IV,

§ 22’s text. Compare 8 Gammel, supra, at 1148 (Act of Aug. 21, 1876),

with Tex. Const. art. IV, § 22. Importantly, however, the statute also

tracked the Anglo-American quo warranto practice described above by

specifying the two traditional grounds for charter forfeiture: “mis-user

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or non-user” by the corporation. 8 Gammel, supra, at 1148. The statute

therefore confirms both that Article IV, § 22, though not using the words

“quo warranto,” was originally understood as constitutionalizing a quo

warranto authority, as well as that this authority was substantively the

same one long recognized at common law. See Am. Indem. Co. v. City of

Austin, 246 S.W. 1019, 1023 (Tex. 1922) (“Legislative construction and

contemporaneous exposition of a constitutional provision is of substantial

value in constitutional interpretation.”).

Three years later, the legislature enacted “[a]n act to prescribe the

remedy and regulate the proceedings by quo warranto,” which shed

further light on what Article IV, § 22 empowered the attorney general to

do. 9 Gammel, supra, at 75 (Act of July 9, 1879). The act authorized the

attorney general to “present a petition to the district court . . . for leave to

file an information in the nature of a quo warranto” on certain grounds.

Id. This authority was triggered if, among other things, “any . . . persons

shall act within this state as a corporation without being legally

incorporated, or any incorporation does or omits any act which amounts

to a surrender or a forfeiture of its rights and privileges as a corporation,

or exercises power not conferred by law.” Id. “[I]f such court or judge

shall be satisfied that there is probable ground for the proceeding,” the

act continued, “the court or judge may grant the petition and order the

information to be filed and process to issue.” Id.

The act’s articulation of the grounds for quo warranto mirrored

§ 22 by treating separately “exercis[ing] power” generally and specific bad

acts, such as “charg[ing] an extortionate rate for the transportation of any

freight or passengers, or refus[ing] to draw or carry the cars of any other

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railroad company over its line as required by the laws of this state.” Id.

But either predicate action by the corporation was unlawful (whether “not

conferred by law” or not in compliance with “the laws of this state”) and

could serve as grounds for a quo warranto information. Id.

With only minor reorganization, this portion of the 1879 act

persists today as codified at § 66.001 of the Civil Practice and Remedies

Code. That provision lies at the heart of the case now before us, as the

attorney general relies on § 66.001(4) and (5) as grounds for the quo

warranto counterclaim he seeks leave to file against Annunciation House.

See Tex. Civ. Prac. & Rem. Code § 66.001(4), (5) (making quo warranto

available if “a corporation does or omits an act that requires a surrender

or causes a forfeiture of its rights and privileges as a corporation” or if

“a corporation exercises power not granted by law”).

Although the statute has not greatly changed in the century and a

half since the 1879 act, corporate law has shifted away from state control

and toward shareholders as the primary investigators of corporate

malfeasance. See Hovenkamp, supra, at 1658. While the 1879 act

allowed an action to be brought “either of [the attorney general’s] own

accord or at the instance of any individual relator,” 9 Gammel, supra, at

43 (Act of July 9, 1879), shareholders today have many other tools to hold

a corporation to account, so quo warranto has fallen into relative disuse

as a tool for corporate supervision. Even so, quo warranto actions against

private corporations are still filed by the attorney general in the lower

courts, albeit more rarely, with one prominent example being the attempt

to enjoin allegedly extortionate rates for telephone services by

Southwestern Bell Telephone Company. See State v. Sw. Bell Tel. Co., 526

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S.W.2d 526, 531 (Tex. 1975) (citing Article IV, § 22 as authority for the

attorney general to maintain the suit); see also id. at 533 (modifying the

trial court’s injunction granted in favor of the attorney general pursuant to

his Article IV, § 22 authority). This Court has also ruled on quo warranto

actions several times throughout the twentieth century by “refusing” writs,

thus affording several appellate courts’ opinions concerning informations

the same precedential value as a decision of this Court. See, e.g., State

v. Dilbeck, 297 S.W. 1049 (Tex. Civ. App.—Austin 1927, writ ref’d).

Aside from corporate malfeasance—the basis for quo warranto

actions the attorney general brings under Article IV, § 22—informations

in the nature of quo warranto also continue to be filed in other areas, such

as challenges to improper usurpation of an elected office, see State ex rel.

McKie v. Bullock, 491 S.W.2d 659, 661 (Tex. 1973), or unlawful annexation

of territory by a municipality, see Mobil Oil Corp. v. Matagorda County

Drainage Dist. No. 3, 597 S.W.2d 910, 912 (Tex. 1980). Even then,

however, quo warranto must still be pursued governmentally; where it is

available, we recently reiterated that “the writ is exclusive and can only

be brought by the attorney general, a county attorney, or a district

attorney.” In re Dallas County, 697 S.W.3d 142, 152 (Tex. 2024); see also

Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436 (Tex. 1991) (“The

only proper method for attacking the validity of a city’s annexation of

territory is by quo warranto proceeding, unless the annexation is wholly

void.”). Moreover, the Texas Constitution and state law currently

authorize direct actions seeking a writ of quo warranto in this Court, see

Tex. Const. art. V, § 3(a); Tex. Gov’t Code § 22.002(a), although we appear

to have entertained such requests on only a few occasions, always

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denying the writ when we have done so, see, e.g., State ex rel. Angelini v.

Hardberger, 932 S.W.2d 489, 490–91 (Tex. 1996) (collecting previous

cases and then denying the writ).

* * *

Summing up, quo warranto’s common-law pedigree stretches back

nearly eight centuries. That a corporate charter could be revoked via quo

warranto “was the common law of the land” in the early United States,

and in Texas too, through our State’s adoption of the common law and by

virtue of statutory enactments. More than that, those who framed and

ratified our 1876 Constitution saw fit to elevate to a constitutional level

the attorney general’s twin powers to inquire into the misuse of charter

rights and to file legal actions addressing such misuse. Finally, the

legislature has provided important context on what those duties include

by providing statutory grounds for quo warranto to address a variety of

corporate misdeeds. Neither the constitutional provision nor the statute

has been materially modified for nearly 150 years.

B

It is with this history of quo warranto in mind that we turn to the

parties’ arguments regarding whether the trial court properly denied the

attorney general leave to file an information. We proceed in four main

steps:

• First, we address Annunciation House’s arguments that other

provisions of Texas law have displaced the attorney general’s

authority to pursue quo warranto in this case. We conclude

that they have not.

• Second, we turn to whether the asserted insufficiency of the

evidence of an underlying violation of the Penal Code made it

proper to deny the attorney general leave to even file a quo

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warranto action here. We explain the proper standard for

assessing motions for leave and conclude that evidentiary

arguments like the ones raised here are premature and thus

not a proper basis for the trial court to deny leave.

• Third, we address whether RFRA requires the early termination

of proceedings ordered below. Even if RFRA turns out to play

a significant role in this case—an outcome that we by no means

foreclose—its role is not to stop the attorney general from even

filing the information, at least under circumstances like those

here.

• Finally, we address whether leave to file quo warranto should be

denied in this case because the statute underlying the attorney

general’s quo warranto filing is preempted by federal law or is

unconstitutionally vague. We find no merit in either contention.

Before explaining these holdings, we emphasize what is not

pending before the Court: any question about Annunciation House’s

actual conduct or whether Annunciation House’s corporate charter should

be revoked. It bears repeating that we review only the denial of the

attorney general’s motion for “leave to file” a quo warranto action—a

filing that would only begin the legal process for the attorney general to

seek revocation. In other words, the question before us is whether the

district court properly refused to allow the attorney general even to

initiate the litigation process that may potentially lead to revocation.

Our holding that the attorney general may begin the process of seeking

charter revocation says nothing, therefore, about whether the attorney

general will be entitled to that relief or even how far the case will

proceed before the question is resolved through the normal process of

litigation. See S. Pac. R.R. Co., 24 Tex. at 119 (“Whoever must exercise

this preliminary right, its exercise is not conclusive; for the facts that

determine the forfeiture, must be ascertained through the judiciary, ‘by

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due course of the law of the land.’ ” (citation omitted)).

Said more simply, the question reduces to whether the attorney

general may file a lawsuit. Framed that way, our answer—that the

attorney general may do so—should sound rather unremarkable. Our

holding is limited to that narrow question. Direct appeals, in particular,

warrant deciding no more than absolutely necessary; going beyond that

would short-circuit the normal appellate process to which the parties will

be entitled based on the results of any proceedings on remand.

With these important caveats, we turn to the parties’ arguments

regarding purported obstacles to the filing of a quo warranto information

against Annunciation House. We begin with those arising from the

Business Organizations Code and the Civil Practice and Remedies Code.

1

The trial court held that Business Organizations Code § 11.301(a)(5)

“supplants” the attorney general’s power to bring a quo warranto action for

illegal corporate acts. It also held that the attorney general failed to plead

any of the grounds for quo warranto informations provided in Chapter 66

of the Civil Practice and Remedies Code. We do not read the text of

§ 11.301(a)(5) to sweep so broadly, nor that of Chapter 66 to cover so little,

so we disagree with both holdings. Even if we had any doubts, moreover,

the doctrine of constitutional avoidance would resolve them against the

district court’s conclusions because Article IV, § 22 requires that

legislative withdrawal of quo warranto authority be stated “expressly.”

a

Section 11.301(a)(5) allows a court to “enter a decree requiring

winding up of a filing entity’s business and termination of [its] existence

19

if, as the result of an action brought under Section 11.303,” the court finds

that the “public interest requires winding up and termination of the filing

entity” based on three criteria listed in subparts (A), (B), and (C). Tex.

Bus. Orgs. Code § 11.301(a)(5)(A)–(C). These criteria are that “the filing

entity has been convicted of a felony” or “a high managerial agent” has

been “convicted of a felony committed in the conduct of the filing entity’s

affairs”; that “the filing entity or . . . agent has engaged in a persistent

course of felonious conduct”; and that “termination is necessary to prevent

future felonious conduct of the same character.” Id. In the trial court’s

view, by creating this scheme governing the dissolution of a corporation

for felonious conduct, the legislature impliedly precluded the attorney

general from achieving the same goal through a quo warranto action.

Annunciation House makes the same argument in this Court, describing

§ 11.301(a)(5) as “the Legislature’s policy determination” that a

corporation’s charter may only be revoked after “at minimum . . . a

conviction, not merely an accusation.” (Emphasis omitted.)

Chapter 66, as we have already noted, is the recodified, and

essentially unchanged, 1879 “act to prescribe the remedy and regulate

the proceedings by quo warranto.” Compare Tex. Civ. Prac. & Rem. Code

§§ 66.001–.003, with 9 Gammel, supra, at 75 (Act of July 9, 1879). The

only innovation that came with codification was to itemize the stated

grounds for quo warranto by placing them into a numerical list,

subsections (1) through (7). The trial court held that the attorney general

“failed to establish probable grounds for the proceedings under . . .

§ 66.002(d)” of that chapter, referring to the grounds outlined in

§ 66.001(1)–(7). Two of those grounds are relevant here: subsection (4)

20

provides that quo warranto is available if “a corporation does or omits an

act that requires a surrender or causes a forfeiture of its rights and

privileges as a corporation,” while subsection (5) says the same if “a

corporation exercises power not granted by law.” Annunciation House

claims that because neither subsection expressly mentions criminal

activity, the alien harboring alleged by the attorney general cannot be

grounds for quo warranto under Chapter 66 and reliance on such grounds

is therefore impliedly forbidden by it.

Finally, Annunciation House asserts (albeit in a single footnote)

that the attorney general’s Article IV, § 22 powers are irrelevant to the

holdings described above because that constitutional provision does not

authorize bringing quo warranto actions based on predicate criminal acts.

Stated differently, the argument appears to be that we should not hesitate

to read either § 11.301 or Chapter 66 to materially limit the attorney

general’s quo warranto power where criminal acts are concerned, as Article

IV, § 22’s text never granted the attorney general quo warranto authority

over such acts in the first place. On this view, the appeal would present

no constitutional question as to the attorney general’s authority, making

it a matter of pure statutory construction to affirm the trial court’s orders

in this respect. Because this argument would, if accepted, color the rest

of our analysis in Annunciation House’s favor, we address it first.

b

Asked to decide a constitutional provision’s scope, we begin with its

text. In relevant part, Article IV, § 22 provides that the attorney general

shall especially inquire into the charter rights of all private

corporations, and from time to time, in the name of the

State, take such action in the courts as may be proper and

21

necessary to prevent any private corporation from

exercising any power or demanding or collecting any species

of taxes, tolls, freight or wharfage not authorized by law.

He shall, whenever sufficient cause exists, seek a judicial

forfeiture of such charters, unless otherwise expressly

directed by law . . . .

Tex. Const. art. IV, § 22. The provision does not deploy the term “quo

warranto informations,” but neither party disputes that the authority

referred to in Article IV, § 22 is quo warranto authority, as we have

treated it for well over a century. See, e.g., State v. Int’l & Great N. R.R.

Co., 35 S.W. 1067, 1068–69 (Tex. 1896).

Annunciation House asks us to limit Article IV, § 22’s scope by

construing its reference to the “exercis[e]” of “any power . . . not

authorized by law” to cover only “demanding or collecting any species of

taxes, tolls, freight or wharfage.” On that reading, because the alien-

harboring allegations here have nothing to do with illegally charging

tolls, the attorney general’s constitutional authority could not be

implicated by the denial of his counterclaim based on those allegations.

Reading Article IV, § 22 to mean that the attorney general has no

constitutional authority where only criminal conduct is alleged as a

predicate ground for a quo warranto action, Annunciation House argues,

would alleviate any constitutional concerns in this case.

We find such a cramped construction inconsistent with Article IV,

§ 22’s plain text, which empowers the attorney general to “take such

action in the courts as may be proper and necessary to prevent any

private corporation from exercising any power or demanding or collecting

any species of taxes, tolls, freight or wharfage not authorized by law.”

Tex. Const. art. IV, § 22 (emphasis added). The three verbs—“exercising,”

22

“demanding,” and “collecting”—are separated by the conjunction “or,”

and the object of each verb is modified by the final phrase “not

authorized by law.” Each object in the list is so modified—otherwise,

quo warranto would be available whenever a corporation “exercis[es] any

power” at all. The clause therefore separately contemplates the exercise

of a power not authorized by law, the demanding of taxes not authorized

by law, and the collecting of taxes not authorized by law. See Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 147 (2012) (describing the “series-qualifier” canon of construction).

The text clearly severs “exercising” power from either “demanding” or

“collecting” taxes, and so its plain reading is irreconcilable with

Annunciation House’s proffered interpretation.

We see no reason to abandon the text’s plain import by treating

the latter half of the series—dealing with taxes and tolls—as somehow

constraining the former, which on its face addresses corporate power

generally. Annunciation House also points to a different provision of the

1876 Constitution, which separately contemplated corporations

“demanding . . . charges . . . [not] authorized by law.” See Tex. Const. of

1876, art. XII, § 4 (repealed Aug. 5, 1969). But we think that citation cuts

against Annunciation House’s position. Article XII, § 4 did not mention

the “exercise of power” at all. It dealt only with tolls charged “for the use

of property devoted by the public.” Id. It is difficult to see why the “exercise

of . . . power” in Article IV, § 22 should be read as intrinsically bound up

with that provision’s additional reference to tolls and taxes, given that the

framers overtly treated “exercising” power and “collecting” tolls separately

in differing provisions of the same instrument. And if the exercise of power

23

in Article IV, § 22 refers only to corporate taxation, it would be equally

surprising, just three years after § 22’s adoption, for the legislature to

have treated the two topics separately in the statutory progenitor of Civil

Practice and Remedies Code § 66.001, listing the exercise of power “not

granted by law” and illegal rate-setting as wholly separate grounds for

a quo warranto action. See 9 Gammel, supra, at 75 (Act of July 9, 1879).

In short, we cannot accept Annunciation House’s invitation to read

Article IV, § 22’s text to say so little. As far as we can see, this Court has

not previously needed to opine about whether corporate criminal acts may

constitute the exercise of power “not authorized by law” within Article IV,

§ 22’s ambit. But the logically inverse position—that criminal acts could

somehow be authorized by law—is difficult to accept. Perhaps it is

unsurprising, then, that the supreme courts of other states have held

unanimously from the late nineteenth century onward that violating

criminal law can constitute the exercise of powers not conferred by law.

See, e.g., State v. Neb. Distilling Co., 46 N.W. 155, 159–60 (Neb. 1890);

State v. Fid. & Cas. Co., 42 N.W. 509, 510 (Iowa 1889); State ex rel. Snyder

v. Portland Nat. Gas Co., 53 N.E. 1089, 1090–92 (Ind. 1899); State ex rel.

Monnett v. Cap. City Dairy Co., 57 N.E. 62, 66 (Ohio 1900); see also People

v. White Circle League of Am., 97 N.E.2d 811, 815–16 (Ill. 1951) (collecting

additional cases). We are aware of no exception, and Annunciation House

has cited none.

Notably, several of these cases concerned statutes with wording

nearly identical to Article IV, § 22 and § 66.001 of the Civil Practice and

Remedies Code—that is, contemplating the exercise of power not granted

by law. See Fid. & Cas. Co., 42 N.W. at 510 (“exercising powers not

24

conferred by law”); see also Portland Nat. Gas Co., 53 N.E. at 1090

(“exercises powers not conferred by law”). The holdings can inform our

understanding of Article IV, § 22’s text because they indicate that the

original public meaning of the phrase “exercising any power not

authorized by law” included a corporation’s committing at least some

criminal acts at the time the 1876 Constitution was adopted. Cf. Am.

Indem. Co., 246 S.W. at 1023. This, in turn, means that addressing

criminal acts by corporate entities does not fall outside the attorney

general’s power to “enquire” and to “seek a judicial forfeiture” of corporate

charters protected by the Constitution, but rather is within it. As a result,

that authority is subject only to those limitations “expressly directed” by

the legislature, as Article IV, § 22 makes plain.

We therefore hold that criminal acts are not categorically excluded

as predicates for the invocation of the attorney general’s authority to file

a quo warranto action. Whether all or any criminal acts may be a

predicate is a wholly different question, one we need not resolve in this

case. To the extent that there are valid historical or legal arguments

casting doubt on whether any particular criminal-act predicate does not

fall within the constitutional text, we neither foreclose the question on

remand nor suggest what the answer may be. What we do foreclose is

the argument that Annunciation House successfully advanced below

and defends in this Court: that criminal conduct cannot be grounds for

a quo warranto action.

Annunciation House further argues that it is the legislature, and

not the attorney general, that decides when “sufficient cause exists [to]

seek a . . . forfeiture.” See State v. Farmers’ Loan & Tr. Co., 17 S.W. 60,

25

64 (Tex. 1891) (holding that § 22 “does not determine what facts, in a

given case, will authorize him to bring and maintain a suit or action”); see

also S. Pac. R.R. Co., 24 Tex. at 116 (explaining that the State may

“declare[], by its legislature, that a particular act of malfeasance” requires

forfeiture). In one important sense, of course, the principle undergirding

this argument is surely true: Article IV, § 22 is built on the premise that

the legislature can draw the lines that determine when quo warranto is

mandatory, permissible, or unavailable.

But to prevail, Annunciation House must make the quite different

argument that quo warranto is not available under Article IV, § 22 until

the legislature specifies that particular acts constitute “sufficient cause.”

The attorney general, in response, argues that the determination of

sufficient cause is within his discretion. We largely agree with the

attorney general: “sufficient cause” in Article IV, § 22 refers to his

discretion under existing law without depending on specific

determinations by the legislature, so long as the legislature has not

clearly withdrawn a particular kind of action from quo warranto’s reach.

We have already rejected essentially the same argument

Annunciation House makes here in State v. Teachers Annuity Life

Insurance Co., 149 S.W.2d 318 (Tex. Civ. App.—Beaumont 1941, writ

ref’d). There, in a “suit to decare void and to cancel [a] corporate charter,”

the attorney general alleged that an insolvent life-insurance company

had unlawfully secured its capital stock with equity in real estate instead

of property permitted by an insurance statute. Id. at 318. The insurance

company argued that the attorney general had no power to bring a quo

warranto action on the basis of the insurance-statute violation, as

26

“complete regulatory power and control of insurance companies and the

business of insurance in general” was vested in a “Board of Insurance

Commissioners.” Id. at 320. The Beaumont Court of Appeals disagreed

and, quoting Article IV, § 22, held that it is “the duty of the Attorney

General to seek judicial forfeiture of corporate charters ‘whenever

sufficient cause exists.’ ” Id. In line with our analysis above, the court

held that “[t]he general authority so conferred is limited only by the added

proviso ‘unless otherwise expressly directed by law’ ” and persists “unless

and until the legislature expressly provides otherwise.” Id. (quoting Tex.

Const. art IV, § 22). But more importantly for our present purpose, it

further held “that the attorney general . . . has the power to determine

the existence of ‘sufficient cause.’ ” Id. We subsequently approved of this

analysis by refusing the ensuing writ, adopting the opinion as binding

precedent. See id. at 318.

Teachers Annuity thus held almost the polar opposite of

Annunciation House’s position on the availability of quo warranto: that,

rather than awaiting legislative authorization, the attorney general’s

authority to investigate corporate charters via quo warranto actions

exists until expressly limited by legislative enactments, and that

determining sufficient cause to file an action is within his sole discretion

where no such limitation forecloses it. See id. at 319–20. This grant of

discretion sits comfortably with the principle found throughout our case

law that “as the chief legal officer of the state, [the attorney general] has

broad discretionary power in conducting his legal duty and responsibility

to represent the State,” power that may not lightly be second-guessed by

coordinate branches of government. Terrazas v. Ramirez, 829 S.W.2d

27

712, 721–22 (Tex. 1991) (first citing Tex. Const. art. IV, § 22; and then

citing Tex. Gov’t Code § 402.021); see also Maud v. Terrell, 200 S.W. 375,

376–77 (Tex. 1918); Lewright v. Bell, 63 S.W. 623, 623–24 (Tex. 1901).

On this point, we recently reiterated that “the office of the attorney

general ‘is one of ancient origin,’ ” whose “powers have deep roots” and

whose “duties remain ‘multifarious, necessarily involving at all times the

exercise of broad judgment and discretion.’ ” Webster v. Comm’n for Law.

Discipline, 704 S.W.3d 478, 495 (Tex. 2024) (alterations incorporated)

(quoting Charles Scribner’s Sons v. Marrs, 262 S.W. 722, 727 (Tex. 1924)).

Webster was not a quo warranto case, but its holding implicated the

attorney general’s core authority to exercise constitutionally conferred

discretion in filing pleadings on behalf of the State. See id. at 483–84. The

attorney general’s discretion to file pleadings can only be more firmly

protected in the context of quo warranto, where “inquir[ing] into the

charter rights of corporations” and seeking revocation in court is an explicit

power conferred by the constitutional text, see Tex. Const. art. IV, § 22, as

opposed to the implicit power of “judgment and discretion” that we

recognized in Webster, see 704 S.W.3d at 495. This protection undergirds

the reasoning of International & Great Northern Railroad Co., where we

held that Article IV, § 22 was sufficiently protective of the attorney

general’s quo warranto authority as to make it exclusive. See 35 S.W.

at 1068–69. Thus, even if district or county attorneys may invoke quo

warranto for some purposes, the legislature may not authorize them (or

anyone other than the attorney general) to do so for investigating

corporate malfeasance. See id. We are not called upon, of course, to

reaffirm or contextualize that particular holding—but it does show the

28

Court’s longstanding recognition that the attorney general starts with a

strong presumption of exclusive authority where quo warranto filings

are concerned.

Taken together, the foregoing reflects that the constitutional text,

our long-standing precedent, and the historical record all confirm the

attorney general’s constitutional authority to seek charter revocation via

quo warranto actions on various grounds that can include violations of

criminal law. To be sure, that authority is subject to general legislative

oversight in that the legislature may require quo warranto informations to

address any “particular act of malfeasance,” S. Pac. R.R. Co., 24 Tex. at

116, or “expressly direct[]” that quo warranto is unavailable in certain

cases, see Tex. Const. art. IV, § 22. But the attorney general’s power to

bring a quo warranto action does not require any separate legislative

authorization or determination that “sufficient cause” exists to exercise

it. As a matter of constitutional law, then, our inquiry at this early stage

thus reduces to whether the trial court’s orders preventing the exercise of

that authority relied on a limit “expressly directed by law.” Id.

c

To answer that question, we first note that Article IV, § 22’s

“unless otherwise expressly directed by law” provision is apparently

unique within our Constitution, unambiguously mandating a clear-

statement rule for restrictions on the attorney general’s quo warranto

power. Clear-statement rules are no rare creature in constitutional law,

of course, but they are generally adopted by the judiciary where the

required clarity “ensure[s] that the government does ‘not inadvertently

cross constitutional lines.’ ” West Virginia v. EPA, 597 U.S. 697, 742

29

(2022) (Gorsuch, J., concurring) (quoting Amy Coney Barrett, Substantive

Canons and Faithful Agency, 90 B.U. L. Rev. 109, 175 (2010)).

But here, the Constitution directly imposes a clear-statement rule,

presumably to prevent either the legislature from unintentionally

abrogating the attorney general’s quo warranto authority or the judiciary

from broadly reading statutes as impliedly limiting that authority in the

absence of “express[] direct[ion] by law.” Broadly reading any statute to

limit, let alone to entirely abrogate, quo warranto risks treading not only

on the attorney general’s authority, then, but on the Constitution’s

independent safeguard of that authority behind its clear-statement rule.

Accordingly, erroneously reading a statute to impair that authority would

be an error of constitutional magnitude, and we will not adopt a statutory

reading that risks such an impairment if another plausible reading is

available. Cf. Borgelt v. Austin Firefighters Ass’n, 692 S.W.3d 288, 303

(Tex. 2024) (“The doctrine of constitutional avoidance . . . require[s] us to

give . . . a construction that steers clear of such constitutional difficulties

unless the text foreclose[s] that construction.”). For Annunciation House

to show its exemption from quo warranto scrutiny by virtue of a

legislative enactment, the statute it invokes must be inescapably clear.

The statutes offered below for this purpose are § 11.301 of the

Business Organizations Code and Chapter 66 of the Civil Practice and

Remedies Code. We address each in turn.

Beginning with § 11.301 of the Business Organizations Code, we

note that nothing in that provision mentions the kind of authority

described by Article IV, § 22—that is, quo warranto authority. The statute

does not state that the contemplated “judicial winding up” procedure

30

constitutes a quo warranto action or that it has entirely replaced such

actions when the predicate for bringing them arises under criminal law.

It shares no language with Article IV, § 22 or Chapter 66. We struggle to

see how statutory silence in § 11.301 as to the attorney general’s Article

IV, § 22 authority could possibly qualify as a limitation “expressly

directed by law,” satisfying that provision’s clear-statement rule.

To the contrary, § 11.301’s silence about any intent to limit quo

warranto authority makes it unlikely that it could overcome the canon

that “statutes will not be interpreted as changing the common law unless

they effect the change with clarity.” Scalia & Garner, supra, at 318. If

§ 11.301 cannot even meet that far lower standard, namely that its

“ ‘express terms or necessary implications’ . . . indicate clearly the

Legislature’s intent to abrogate” the attorney general’s common-law quo

warranto authority, Forest Oil Corp. v. El Rucio Land & Cattle Co., 518

S.W.3d 422, 428 (Tex. 2017) (emphasis added) (quoting Cash Am. Int’l

Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000)), it certainly cannot satisfy

Article IV, § 22’s demand that the withdrawal of authority be “expressly”

stated. The trial court therefore erred in concluding that § 11.301

expressly limits the attorney general’s quo warranto power, much less

entirely “supplants” it.

Annunciation House contends that construing § 11.301(a)(5) not

to abrogate quo warranto actions based on alleged criminal acts leads to

absurd results. See Malouf v. State ex rels. Ellis, 694 S.W.3d 712, 718

(Tex. 2024) (stating that courts “apply the common, ordinary meaning

of [a statute’s] words ‘unless the text supplies a different meaning or the

common meaning leads to absurd results’ ” (citation omitted)). If quo

31

warranto revocation is available even where the criminal acts would not

allow winding up under § 11.301(a)(5), the argument goes, an acquitted

corporation could be closed through quo warranto but not under

§ 11.301(a)(5). If so, Annunciation House claims, an acquitted

corporation would be easier to close than a convicted one, creating an

absurd and inequitable imbalance.

We disagree with the premise and see no circumstance in which

quo warranto’s existence alongside § 11.301(a)(5) creates absurdity. The

two legal pathways are distinct. If § 11.301(a)(5) applies, a corporation is

never better off to be convicted rather than acquitted; quo warranto

proceedings, in turn, do not depend on there being any actual criminal

prosecution at all. Moreover, as the attorney general emphasizes,

§ 11.301 is part of a larger scheme within Chapter 11 of the Business

Organizations Code, which largely governs when the secretary of state—

the official primarily responsible for the filing of corporate charters—

must recognize or effect the winding up of a corporate entity. Reading

§ 11.301(a)(5) as creating a limited, mandatory mechanism to revoke

charters because of criminal activity, shared between the attorney

general and the secretary of state subject to Chapter 11’s unique

structure, strikes us not as absurd but as consonant with our duty to

harmonize statutes and to interpret them “in a manner that avoids

constitutional infirmity.” Quick v. City of Austin, 7 S.W.3d 109, 115 (Tex.

1998). Because § 11.301 does not even “expressly” limit quo warranto,

we again cannot agree with the trial court’s holding that the provision

entirely “supplants” the attorney general’s quo warranto authority.

Turning to Chapter 66, we note that the chapter both mentions quo

32

warranto and clearly addresses the attorney general’s Article IV, § 22

powers. But it is not styled as a limitation on quo warranto and has never

been so understood since its initial adoption in 1879. See supra Part

II.A (discussing the statute). Instead, it expressly authorizes such

proceedings on particular grounds. See Tex. Civ. Prac. & Rem. Code

§ 66.001 (“An action in the nature of quo warranto is available if . . . .”).

Unlike the silent § 11.301, then, § 66.001 presents a more straightforward

case for the expressio unius canon of construction, at least making it

plausible that, by “expressing [several items] of [the] commonly

associated group” (here, the several grounds for quo warranto), the

statute meant to “exclude[] [others] left unmentioned” (here, criminal-law

violations). See United States v. Vonn, 535 U.S. 55, 65 (2002). Expressio

unius, however, relies on “[t]he force of . . . negative implication,” Marx v.

Gen. Revenue Corp., 568 U.S. 371, 381 (2013) (emphasis added), and is of

little use where the Constitution itself recognizes only a positive

limitation—that is, that only a limitation that is “expressly directed” will

do, Tex. Const. art. IV, § 22.

Even assuming for argument’s sake that § 66.001 can (and does)

impliedly forbid any unmentioned grounds for quo warranto, that would

still not justify rejecting the filing here. Recall that one of § 66.001’s

grounds—namely, subsection (5)’s reference to the exercise of “power not

granted by law”—is worded identically to the key language in Article IV,

§ 22 (and to other late-nineteenth century quo warranto statutes

discussed above, including the 1879 act). We have already held that the

phrase “exercising any power . . . not authorized by law” in Article IV,

§ 22 does not categorically exclude violations of the criminal law. Put

33

differently, Article IV, § 22 does not foreclose criminal acts from being

predicate grounds for a quo warranto filing, and any limits on the quo

warranto authority that might exist because of nearly identical language

in Chapter 66 obviously may not have that result either. We therefore

cannot affirm the trial court’s order holding that the attorney general

failed to plead a “probable ground” for a quo warranto counterclaim

merely because that claim relied on criminal acts.

* * *

Both inherently under the common law and expressly under Article

IV, § 22, the attorney general has substantial discretion to file quo

warranto actions, and this authority does not categorically exclude actions

predicated on alleged corporate criminal-law violations. The power

existed at common law until “expressly reserved,” S. Pac. R.R. Co., 24 Tex.

at 121, and exists in Texas as a matter of constitutional law “unless

otherwise expressly directed by law,” Tex. Const. art. IV, § 22. But the

power to seek quo warranto can be exercised only through the courts,

which must ultimately decide whether charter revocation is warranted;

merely filing an action does not itself entitle the attorney general to that

remedy. See S. Pac. R.R. Co., 24 Tex. at 119; see also Farmers’ Loan & Tr.

Co., 17 S.W. at 64 (holding that “the final inquiry must in all cases be made

in and through the courts, as to whether . . . the corporation has exercised

a power not given by its charter or the general laws of the state”).

Applying these principles here, we hold that the attorney general

acted within his constitutional authority when he sought leave to file a

quo warranto counterclaim based on alleged criminal acts by Annunciation

House. Because § 11.301 does not expressly limit the attorney general’s

quo warranto authority, and because the attorney general complied with

34

any limitation imposed by Chapter 66 of the Civil Practice and Remedies

Code, neither statute justifies rejecting the counterclaim’s filing, and the

trial court erred in reaching the contrary conclusion.

2

Annunciation House next argues that even if violations of the

alien-harboring statute may serve as predicate grounds for a quo

warranto action, the attorney general failed to adequately allege such a

violation here. On this point, the parties vigorously dispute the evidence,

but weighing the evidence is improper at this preliminary stage. As we

explain, whether to grant leave to the attorney general to file a quo

warranto action presents a legal question: whether the petition on its face

fails as a matter of law. Evidentiary questions or debates about how legal

requirements apply to the facts are therefore outside the scope of the

initial decision to grant leave to file. The usual tools of litigation exist

in the quo warranto context, too; as in all other cases, those tools may

generate early resolution of a quo warranto action.

Notably, the parties have not cited a decision of this Court that

followed a trial court’s denial of leave to file—as far as we can see, every

case has started with the trial court granting leave. We are not surprised

by that imbalance because granting the attorney general’s request for

leave to file a claim within his core constitutional authority should be the

norm. Cf. Webster, 704 S.W.3d at 500. Quo warranto’s additional

procedural requirement—to seek leave to file—is unaccompanied by

specific guidance about the contents or requirements of initial filings from

either Article IV, § 22 of the Constitution, Chapter 66 of the Civil Practice

and Remedies Code, or our rules of procedure. As the Austin Court of

35

Appeals has aptly observed, “no statute, rule, or caselaw explicitly

requires the State to verify its petition [for quo warranto] or support it

with evidence.” State v. City of Double Horn, No. 03-19-00304-CV, 2019

WL 5582237, at *4 (Tex. App.—Austin Oct. 30, 2019, pet. denied).

Most of these matters can be handled by analogizing to civil

litigation generally. Long ago, when confronted with whether quo

warranto’s quasi-criminal origins affect how an information is to be

treated procedurally, this Court clarified that it “is to be treated as a

civil suit” subject to “the rules of practice” in general use. Davis v. State

ex rel. Wren, 12 S.W. 957, 958 (Tex. 1889). And as to assessing a motion

for leave in particular, this Court has at least provided basic guidance.

In Hunnicutt v. State ex rel. Witt, we distinguished between evidence

adduced in seeking simply to file an information and the merits of the

quo warranto action itself, holding that the former “establishes no facts

on which the merit of the [latter] rests; these must be established by

evidence on final trial.” 12 S.W. 106, 108 (Tex. 1889). Crucially, we

concluded, the attorney general’s “official statement, unsworn, would be

sufficient to authorize a judge” to file the requested information. Id.

Consistent with this premise, the courts of appeals appear to

uniformly apply a sufficiency-of-the-pleadings standard, in which “the

trial court must accept as true the allegations contained in the State’s

petition . . . and ‘need only find that the petition stated a cause of action

to proceed.’ ” City of Double Horn, 2019 WL 5582237, at *4 (quoting

Ramirez v. State, 973 S.W.2d 388, 393 (Tex. App.—El Paso 1998, no pet.));

see also State ex rel. Manchac v. City of Orange, 274 S.W.2d 886, 888 (Tex.

App.—Beaumont 1955, no writ) (“If the petition sought to be filed state[s]

36

a cause of action, the court [is] in error in refusing permission to file it.”).

We approve this standard as consistent with our case law, the

statutory requirements of Chapter 66, and the larger context of civil

litigation in general and quo warranto actions in particular. The current

statute requires only a “probable ground for the proceeding” to justify

filing. See Tex. Civ. Prac. & Rem. Code § 66.002(d). Filing the action

merely opens the door to the litigation process, which requires probative

evidence for the attorney general to prevail. See Hunnicutt, 12 S.W. at

108. A motion for leave is therefore not an opportunity to litigate the

entire case before it is even filed. Rather, it authorizes a limited facial

attack to weed out filings that, due to some legal defect, cannot survive

even though the court assumes the truth of the allegations.

Though deferential, this standard is not a mere rubber stamp on

the attorney general’s motion for leave. If a requested quo warranto filing

alleges no conduct that Texas law actually proscribes, for example, the

trial court may deny leave to file. In at least one case, we held that the

trial court was too generous in granting leave for just that reason. See

Queen Ins. Co. v. State ex rel. Att’y Gen., 24 S.W. 397, 406–07 (Tex. 1893)

(reversing a trial court’s grant of leave to file where the conduct

complained of did not state a violation of the antitrust statute on which

the attorney general relied).

Moreover, the legislature—although it must do so “expressly,” Tex.

Const. art. IV, § 22—remains at liberty to materially limit or abolish quo

warranto in any given circumstance. A motion for leave to file a quo

warranto action should be denied if, on its face, it falls within such an

express legislative prohibition. Leave could similarly be denied if the face

37

of the filing shows a violation of an unambiguous venue requirement or

other legal mandate.

In other words, there are multiple ways in which a filing might fail

to “state[] a cause of action” for which quo warranto is available. See City

of Orange, 274 S.W.2d at 888. If for that or other reasons the attorney

general cannot establish that “there is probable ground for the

proceeding,” Tex. Civ. Prac. & Rem. Code § 66.002(d), the trial court may

deny leave to file.

In comparing this filing hurdle to various pretrial dispositive

motions, we do not, of course, prejudge how any properly filed pretrial

dispositive motion would fare with respect to the sufficiency of the

attorney general’s factual or legal allegations. Precisely because the

choice to allow a quo warranto filing requires such deference and

pretermits the kind of factual and legal scrutiny that will come later,

granting leave to file such an action has no preclusive effect on a court’s

consideration, for example, of a Rule 91a motion. All such ordinary tools

of civil litigation remain available to any target of a quo warranto action.

Many of those procedural devices, like Rule 91a motions, are

comparatively new and were not available during most of quo warranto’s

history in Texas, so it is not surprising that our cases do not mention

them. Contemporary litigation, including in this context, must be

governed by the prevailing rules of procedure.

Returning to the present case, most of Annunciation House’s

evidentiary arguments are therefore beside the point at this early stage.

Annunciation House briefed this appeal almost as a miniature trial on

the merits, asking that we assess (among other things) whether the

38

Fourth Amendment right to privacy applies to Annunciation House’s

premises or may be asserted by the shelter’s director to defeat an alien-

harboring charge. We may not resolve those questions on a direct appeal

from the denial of leave to file, and we are particularly hesitant to do so

where our jurisdiction was invoked by altogether separate defects in the

trial court’s injunctive rulings. Instead, for purposes of this appeal, we

must take as true what the attorney general has alleged in his pleadings

and decide only whether those allegations “state a cause of action”

allowing quo warranto to proceed based on an alien-harboring charge.

City of Orange, 274 S.W.2d at 888.

Turning to the pleadings, we take the attorney general to allege

that Annunciation House (1) provides shelter to illegal aliens; (2) is aware

that many of its guests are illegally present; (3) refuses to cooperate with

law enforcement or permit law enforcement to enter its shelters at all to

protect its illegally present guests from detection; and (4) purposefully,

knowingly, and systematically shields illegal aliens from detection.

Annunciation House protests that the allegations in fact amount to

merely providing shelter to migrants, not doing what the statutes

actually forbid: knowingly “encourag[ing] or induc[ing] a person to enter

or remain in this country in violation of federal law by concealing,

harboring, or shielding that person from detection.” Tex. Penal Code

§ 20.05(a)(2); see also id. § 20.07(a)(1) (making it an offense to “use any

real estate . . . or other property” to violate § 20.05).

Annunciation House is certainly correct on one point, as the

attorney general now agrees: that merely providing shelter to persons who

happen to be migrants, regardless of their legal status, does not violate

39

the alien-harboring statute. Both parties cite Cruz v. Abbott, in which the

Fifth Circuit made an Erie guess that “harboring” under the statute

“requires some level of covertness well beyond merely renting or providing

a place to live.” 849 F.3d at 599. Characterizing the attorney general’s

allegations as criminalizing “merely . . . providing a place to live” to

migrants, Annunciation House claims the conduct the attorney general

alleges cannot be criminal, and thus cannot support the motion for leave,

under Cruz’s limiting construction of the alien-harboring statute.

We agree with Annunciation House’s premise but not its

conclusion. In our view, Cruz correctly read the alien-harboring statute’s

scope as not including the mere provision of shelter. Cruz was an Erie

guess, but an informed one, and it reasonably credited the legislature

with knowing that the language it enacted has been repeatedly used in

other statutes and repeatedly given a construction that goes beyond

providing the essentials of life to someone:

This court interprets the words “harbor, shield, or conceal,”

which appear in a federal immigration statute, to mean that

“something is being hidden from detection.” We recently

reaffirmed our understanding of that language in Villas at

Parkside Partners v. City of Farmers Branch, 726 F.3d 524,

529 (5th Cir. 2013) (en banc). Although our precedent is not

binding on Texas courts when interpreting Texas statutes,

it is reasonable to assume that the legislature was aware of

these decisions. A number of other circuits have interpreted

similar language to suggest that something is being hidden

from detection.

Id. at 600 (internal citation and footnotes omitted). We confirm that in

adopting the alien-harboring ban, the legislature did not purport to

criminalize the mere provision of food, shelter, or other means of survival,

but it instead criminalized knowing efforts to thwart the detection of

40

those illegally present in our country—which is what harboring is. The

line may occasionally seem thin or blurry, but at least in principle, as the

State concedes, the distinction between harboring and merely providing

shelter is real.

That reading of §§ 20.05(a)(2) and 20.07(a)(1) may, as the facts

develop, require resolving the case for Annunciation House. But not yet,

because we read the attorney general’s petition below and his briefs in

this Court to paint Annunciation House as violating the statute as Cruz

interpreted it. We take the attorney general to allege a case of

“hamper[ing] authorities from finding any of the illegal aliens

[Annunciation House] . . . serve[s],” as well as “tak[ing] steps to help the

aliens evade ‘detection’ by the authorities,” precisely as Cruz

contemplated. Id. at 602.

Annunciation House protests that, in context, what the attorney

general characterizes as intentional and purposeful concealment is

nothing more than the provision of shelter and the reasonable assertion

of Fourth Amendment rights. The problem, however, is that weighing

competing views of the evidence, let alone the merits of any constitutional

objections based on a particular view of the evidence, is premature. We

hold that the attorney general’s allegations of violations of the alien-

harboring statute are sufficient to satisfy § 66.002(d)’s “probable ground”

requirement. The trial court erred by denying leave to file the quo

warranto action on this ground.

Of course, as the case proceeds on remand, all the usual

evidentiary objections, along with the ability to marshal evidence in its

defense, will be available to Annunciation House. As with a ruling on a

41

pretrial dispositive motion, our taking these allegations as true at this

stage hardly suggests that they are all accurate or that they will be

proven. See Hunnicutt, 12 S.W. at 108. But the question before us is

simply whether the case may be filed in the first place, and the asserted

insufficiency of the allegations does not provide a basis to deny the

attorney general leave to do so.

3

The trial court ruled that a quo warranto action based on the alien-

harboring statute was also impermissible under RFRA. Annunciation

House, joined by several amici, defends that ruling in this Court because

“[c]losing Annunciation House would substantially burden its free

exercise of religion” and because “closure would not merely ‘significantly

modify’ Annunciation House’s provision of shelter—it would end it.”

Further, Annunciation House argues, such a closure would not constitute

“the least restrictive means to achieve” whatever interest the State might

have. Annunciation House emphasizes its religious affiliation as part of

the Roman Catholic Church and its Catholic mission to help impoverished

migrants. The attorney general argues that, assuming RFRA applies to

quo warranto at all, it is satisfied, including because the State has a

compelling interest in enforcing the immigration laws of this State

against Annunciation House. At the very least, he argues, RFRA’s

application is premature. We conclude that in the present posture of the

case, RFRA is an improper basis for the district court to have denied the

attorney general leave merely to file the quo warranto counterclaim. For

the same reason, it would be improper at this stage for us to further opine

on the significant RFRA issues that the parties so heatedly debate.

42

RFRA applies when “a government agency . . . substantially

burden[s] a person’s free exercise of religion.” Tex. Civ. Prac. & Rem.

Code § 110.003(a). To survive RFRA scrutiny, the government agency

must “demonstrate[] that the application of the burden to the person”

both “(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that interest.” Id.

§ 110.003(b). RFRA may apply either as an affirmative “defense in a

judicial or administrative proceeding,” id. § 110.004, or as an affirmative

claim, see id. § 110.005(a). Annunciation House invoked RFRA as an

affirmative defense, initially to the attorney general’s records request

and later to the attorney general’s motion for leave to file a quo warranto

counterclaim and request for injunctive relief.

For purposes of today’s decision, we assume without deciding that

applying RFRA’s protections does not conflict with Article IV, § 22’s clear-

statement rule, and we thus presume that RFRA operates just as fully in

quo warranto proceedings as in any other civil-litigation context. But

whether and to what extent RFRA applies in such proceedings are

separate questions from whether the trial court erred when it agreed with

Annunciation House that RFRA compelled it to deny the attorney general

leave to file the quo warranto counterclaim.

At this stage, as we have held, determining whether to grant leave

to file a quo warranto action does not involve weighing the evidence or

reaching the ultimate merits of the claim. We address only whether the

attorney general may even file an information putting his allegations

before the trial court in the first place. The parties’ RFRA arguments, by

contrast, debate this case’s ultimate merits and vigorously dispute

43

specific facts. On the one hand, Annunciation House emphasizes its

mission, its religious motivation, the consequences that might be imposed

if the attorney general could secure the ultimate relief that he seeks, and

similar matters. On the other, the attorney general focuses on the serious

problems at the border, the compelling nature of the government’s

interest, his doubts that Annunciation House’s challenged conduct has a

sufficient nexus to its religious mission, the reasons that he is entitled

to the relief he seeks, and the like.

If the merits of Annunciation House’s affirmative RFRA defense

were before the Court, these arguments would be relevant to our ultimate

determination. As we have confirmed, “RFRA requires that ‘courts

should strike sensible balances, pursuant to a compelling interest test

that requires the Government to address the particular practice at

issue.’ ” Barr v. City of Sinton, 295 S.W.3d 287, 306 (Tex. 2009) (quoting

Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S.

418, 439 (2006)) (finding “no basis for distinguishing” between RFRA

and its federal counterpart in this regard). The statute “requires the

Government to demonstrate that the compelling interest test is satisfied

through application of the challenged law ‘to the person’—the particular

claimant whose sincere exercise of religion is being substantially

burdened.” Id. (quoting O Centro Espírita, 546 U.S. at 430–31). In other

words, a granular focus on the specific facts, practices, and interests on

both sides is by design inescapable in making a RFRA determination, at

least when such matters are disputed.

The problem with using RFRA to deny leave to file here, therefore,

is obvious. The parties’ RFRA debate focuses on the remedy the attorney

44

general ultimately seeks—shutting down Annunciation House—and the

merits of his request. But the questions before us are not whether the

attorney general can prove that Annunciation House violated the alien-

harboring act or whether, if it did, charter revocation is the proper remedy

under Civil Practice and Remedies Code § 66.003. Necessarily, then, we

cannot resolve any debates about the nature of Annunciation House’s

mission or the State’s interests.

Said differently, the relevant government action for purposes of

applying RFRA here is not the charter revocation that may or may not

arrive, but only the filing of the quo warranto information. Engaging in

litigation is generally not itself the sort of burden that RFRA forecloses—

RFRA purposefully provides a tool to be deployed within litigation. In

this case, it has been invoked as an affirmative defense focusing not on

the mere existence of the litigation but on a potential end result of that

litigation. Undoubtedly, RFRA can be powerful however it is deployed,

and its potency often may be felt quite early. But it is not a tool to convert

a proceeding focused on whether litigation may even commence into one

that reaches and resolves ultimate issues. Were we to say more about

RFRA at this stage, we would have to reach issues that go well beyond

the narrow question of the attorney general’s authority to file a quo

warranto counterclaim—and to do so without the benefit of a sufficiently

developed record or even the refining that ordinarily comes through the

usual litigation and appellate process.

At the same time, we should not be misunderstood as categorically

barring recourse to RFRA early in the litigation process. RFRA need not

be used only defensively but can be invoked as a basis to secure an

45

injunction. RFRA is a testament to Texans’ deep respect for religious

liberty, which may require terminating government action before the

government has had the opportunity to infringe at all. We recently

reiterated as much in Hensley v. State Commission on Judicial Conduct,

which authorized an affirmative RFRA claim to proceed where a state

commission had used a public warning to threaten future adverse action.

692 S.W.3d 184, 185–86 (Tex. 2024). Even then, however, the RFRA

claim—despite being brought affirmatively—had to proceed through the

normal litigation process. See id. at 199–201. RFRA arguments should

be resolved as soon as practicable once an adequate record exists and once

the procedural posture of the case allows the court to proceed to such

merits inquiries. This basic principle of law does not preclude relief in

cases like Hensley, where the initial stages of litigation make clear that

the facts are essentially undisputed, allowing the court to expeditiously

resolve any RFRA questions as a matter of law.

We therefore decline to further address the parties’ distinct RFRA

questions, which may unfold below in the normal course. The parties

have made helpful arguments regarding RFRA in general and in this

case, and we appreciate the valuable contributions of amici, including by

the presentation of oral argument focused on RFRA. We foreclose full

consideration of none of these arguments on remand at any proper stage.

4

The trial court further ruled that even assuming the attorney

general could prove that Annunciation House violated the alien-

harboring statutes, federal law precludes relying on those violations in a

quo warranto information. Specifically, it held that both the harboring

46

and stash-house provisions of the alien-harboring statute are field and

conflict preempted by federal law and unconstitutionally vague as applied

to Annunciation House. Annunciation House defends both rulings.

a

As to field preemption, Annunciation House simply cites Arizona

v. United States, 567 U.S. 387 (2012), without further elaboration in this

Court. As to conflict preemption, Annunciation House points to 8 U.S.C.

§ 1324(a)(1)(A)(iii), the federal alien-harboring statute, asserting that it

is “impossible” to comply with both that provision and Penal Code

§ 20.05(a)(2). Annunciation House also contends that § 20.05(a)(2)’s

enforcement would frustrate “the full purposes and objectives of

Congress.” Arizona, 567 U.S. at 399 (citation omitted).

We assume for purposes of our decision that federal preemption

can be a proper basis for denying leave to file a quo warranto action.

After all, if on the face of the pleadings it is clear that the only asserted

basis for quo warranto is a state law that is unenforceable under the

Supremacy Clause, see U.S. Const. art. VI, cl. 2, then it is hard to see

how the proposed action could state a valid claim. But even adopting

that premise, we disagree with the trial court and Annunciation House

that the Texas alien-harboring statute can be regarded as preempted

and thus bar the filing of this quo warranto action.

First, as to field preemption, “in order to determine whether

Congress has implicitly ousted the States from regulating in a particular

field,” the Supreme Court has “first identif[ied] the field in which this is

said to have occurred.” Kansas v. Garcia, 589 U.S. 191, 208 (2020). The

trial court’s single sentence on preemption is not of much help here, and

47

Annunciation House is similarly vague about what “field” is preempted

in its briefing, mentioning “the federal government’s alien registration

scheme” at one point but otherwise focusing on conflict preemption. Of

course, the alien-harboring statute says nothing about alien registration

and cannot be credibly compared to the preempted statute in Arizona that

criminalized failure to carry federally approved identification. See 567

U.S. at 400. And Annunciation House cannot possibly mean that any

state criminal law touching on immigration whatsoever is preempted, a

view the Supreme Court roundly rejected in Garcia. See 589 U.S. at 212;

see also De Canas v. Bica, 424 U.S. 351, 354–55 (1976) (“But the Court

has never held that every state enactment which in any way deals with

aliens is . . . per se pre-empted by this constitutional power, whether

latent or exercised.”). Even defining the field so narrowly as “anti-

harboring,” the attorney general points out that at least one federal court

of appeals has held that quite circumscribed domain not to be preempted,

reasoning that 8 U.S.C. § 1324 cannot alone be treated as a “framework

of regulation so pervasive” as to oust the states entirely. See Keller v. City

of Fremont, 719 F.3d 931, 943 (8th Cir. 2013) (quoting Arizona, 567 U.S.

at 399). Absent any compelling argument that the alien-harboring

statute treads upon a field within which Congress has forbidden states

to act, we reject Annunciation House’s arguments on that point.

Second, as to conflict preemption, we see this case as analogous to,

and controlled by, Chamber of Commerce of the United States v. Whiting,

563 U.S. 582 (2011). In that case, the Supreme Court upheld an Arizona

statute that mirrored federal law by “prohibit[ing] ‘knowingly’ employing

an unauthorized alien.” Id. at 601 (quoting both 8 U.S.C. § 1324a(a)(1)(A)

48

and Ariz. Rev. Stat. § 23–212(A)). Like the Penal Code provisions at

issue here, the Arizona statute “cover[ed] only knowing or intentional

violations” and “adopt[ed] the federal definition of who qualifie[d] as an

‘unauthorized alien.’ ” Id. at 601, 605–06 (comparing 8 U.S.C. § 1234a(h)(3)

with Ariz. Rev. Stat. § 23–211(11)). Far from a reason to find preemption,

the Supreme Court lauded this close tracking of federal law as showing

that there “[could] by definition be no conflict between state and federal

law as to worker authorization.” Id. at 601; see also Zyla Life Scis., L.L.C.

v. Wells Pharma of Hous., L.L.C., 134 F.4th 326, 335 (5th Cir. 2025) (“If

anything, parallel standards, which ensure that the same primary

conduct is regulated in the same way, pose reduced risk to federal

enforcement priorities as compared to non-parallel standards, which

regulate the same primary conduct in different ways.”). Texas’s alien-

harboring statute is essentially identical in this important respect, as

Penal Code § 20.05(a)(2) forbids only harboring those “remain[ing] in this

country in violation of federal law.”

Annunciation House argues that Whiting is distinguishable, as the

statute there provided for civil rather than criminal penalties and complied

with a federal saving clause allowing for some state regulation. See 563

U.S. at 596 (describing the Arizona law as “comfortably within the [federal]

saving clause”). As we have already noted, Garcia made clear that state

criminal law is not an inherently suspect category in preemption analysis.

589 U.S. at 212. And insofar as Whiting relied on the federal saving

clause, it did so for the express-preemption argument raised there before

separately ruling that the provisions were not impliedly preempted either.

See 563 U.S. at 600 (“As an alternative to its express preemption argument,

49

the Chamber contends that Arizona’s law is impliedly preempted because

it conflicts with federal law.”). Because Annunciation House cannot show

that compliance with both federal law and the alien-harboring statute is

“a physical impossibility,” Arizona, 567 U.S. at 399 (citation omitted), the

statute is not conflict preempted on that ground.

Finally, we turn to whether Texas’s alien-harboring statute

“stands as an obstacle to the . . . full purposes . . . of Congress.” Id.

(citation omitted). “We proceed with great hesitation when asked to

construe statutory text based on the statute’s purpose, particularly when

the statute never expresses its purpose.” Malouf, 694 S.W.3d at 730.

Neither with respect to the particular statute that it invokes, 8 U.S.C.

§ 1324(a), nor federal immigration law more broadly, has Annunciation

House identified a statutory statement of purpose. Instead, it abstracts

a highly generalized congressional purpose of forbidding state roles in

immigration enforcement. We, by contrast, ascertain a statute’s purpose

based on what the statute says rather than how in the abstract we might

describe the motives of the legislative body that enacted it. See, e.g., Univ.

of Tex. at Austin v. GateHouse Media Tex. Holdings II, Inc., ___ S.W.3d

___, 2024 WL 5249449, at *6 & n.64 (Tex. Dec. 31, 2024); Morath v.

Lampasas ISD, 686 S.W.3d 725, 737 & n.42 (Tex. 2024); Gabriel Inv. Grp.

v. Tex. Alcoholic Beverage Comm’n, 646 S.W.3d 790, 798 (Tex. 2022).

Absent that presuppositional guardrail, “implied obstacle preemption

invites judges to imagine what the unexpressed ‘purposes and objectives’

of Congress might have been and speculate about whether there is

tension between those purposes and state law that rises to the level of an

‘obstacle.’ ” Horton v. Kan. City S. Ry. Co., 692 S.W.3d 112, 148 (Tex.

50

2024) (Busby, J., concurring).

Fortunately, however, the Supreme Court has made the analysis

simpler where nebulous “purposes” allegedly foreclose areas of traditional

state power, such as quo warranto proceedings and criminal law. In those

circumstances, “Congress should make its intention ‘clear and manifest’ ”

for such a result to follow. See Will v. Mich. Dep’t of State Police, 491 U.S.

58, 65 (1989) (citation omitted). When examining the statute itself, and

not a purposivist gloss on it, we find the opposite of such a “clear and

manifest” intention. Rather than expressing a “purpose” to wholly

exclude the states from immigration enforcement, or even to achieve that

goal in practice, the statute instead includes an affirmative authorization

of state enforcement of the federal alien-harboring statute in 8 U.S.C.

§ 1324(c), which empowers “all . . . officers whose duty it is to enforce

criminal laws” to make arrests for “a violation of any provision of this

section.” This saving clause includes state officers, who have been

conducting arrests under the federal alien-harboring statute for at least

fifty years. See, e.g., United States v. Olivares, 496 F.2d 657, 659 (5th Cir.

1974) (involving an illegal-alien detention conducted by local El Paso

County law enforcement). Annunciation House claims that enforcing the

statute risks upsetting its working relationship with federal immigration

authorities, but the Supreme Court has clearly distinguished between

“Laws of the United States,” which are protected by the Supremacy

Clause, and “the criminal law enforcement priorities or preferences of

federal officers,” which are not. Garcia, 589 U.S. at 212.

Without more, a state enactment precisely tracking federal law

does not make compliance with both “impossible” or inherently frustrate

51

“the full purposes and objectives of Congress” in enacting the latter,

Arizona, 567 U.S. at 399 (citation omitted), at least where that federal

law already invites state officers to enforce it, see 8 U.S.C. § 1324(c). As

such, we hold that Texas’s alien-harboring statute is neither field nor

conflict preempted such that it could not serve as a plausible basis for

the attorney general’s quo warranto filing.

b

The trial court also held that the alien-harboring statute, as

applied to Annunciation House via the quo warranto information, would

render both that statute and the quo warranto enabling statute

“unconstitutionally vague in violation of due course of law and therefore

unenforceable,” citing Article I, § 19 of the Texas Constitution and

Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425 (Tex. 1998).

The order’s references to only the Texas Constitution, to “due course of

law” (rather than to the federal Constitution’s phrase, “due process”),

and to only a decision of this Court suggest only a state-law basis for the

challenge. Benton, however, turned entirely on federal law, and the

parties’ arguments also primarily cite federal authorities. For example,

the attorney general observes that “Texas courts generally hold [the

Fourteenth Amendment’s due-process clause] to be similar to our State’s

due-course-of-law provision.” Accordingly, without any distinct argument

concerning the scope of the Texas Constitution, we will assume for

present purposes that the anti-vagueness requirements of the two

clauses are the same.

Annunciation House takes the trial court’s vagueness holding to

mean two things. First, it says, applying the alien-harboring statute to

52

Annunciation House on these facts would violate Cruz’s limiting

construction of the statute and deprive the shelter of fair notice of what

the statute means by “harboring.” Second, it contends that allowing the

attorney general to base quo warranto filings on criminal law would

violate the constitutional rule “that a legislature establish minimal

guidelines to govern law enforcement,” and risk unleashing the attorney

general “to pursue [his] personal predilections.” Kolender v. Lawson, 461

U.S. 352, 358 (1983) (citation omitted). The first point is resolved by our

holding that, taken as true, the attorney general’s allegations do fall

within Cruz’s limited definition of “harboring.” Annunciation House itself

argues that adopting that definition “avoids issues of unconstitutional

vagueness,” and we readily agree.

As to the vagueness challenge to quo warranto enforcement of the

alien-harboring statute, we cannot accept Annunciation House’s

constitutional argument. It is undoubtedly true that a statute may be

unconstitutionally vague where “it fails to give fair notice of what conduct

may be punished” and where its “language is so unclear that it invites

arbitrary or discriminatory enforcement.” Tex. Dep’t of Ins. v. Stonewater

Roofing, Ltd., 696 S.W.3d 646, 660 (Tex. 2024). Focusing on the second

part of this formula, Annunciation House argues that permitting the

attorney general to pursue criminal-law violations by corporations in quo

warranto actions vests him with unlimited discretion to conduct a

“standardless sweep” of corporate charters. Kolender, 461 U.S. at 357

(citation omitted). We disagree.

Initially, we note that Annunciation House cites no authority for

the proposition that supporting quo warranto filings with criminal acts

53

violates due process; instead, it relies on cases that involved ordinary

prosecutions like Kolender, civil disputes like Stonewater Roofing, or

attorney sanctions like Benton. Given the long history of quo warranto

actions based on criminal-law violations in American law, see supra Part

II.B.1.b, it is unsurprising that there is no authority for that mechanism’s

categorical unconstitutionality.

Moreover, we do not see the attorney general’s ability to pursue

violations of clearly defined criminal laws either by direct prosecution or

by a quo warranto information as remotely comparable to the blank-check

authority that a vague statute offers—the power to prosecute essentially

anyone for anything. See Coates v. City of Cincinnati, 402 U.S. 611, 614

(1971) (holding unconstitutionally vague an ordinance where “no

standard of conduct is specified at all”). What Annunciation House

declares an unconstitutional grant of sweeping authority is, in our view,

essentially indistinguishable from an ordinary exercise of discretion,

which (although not wholly impervious to attack in certain circumstances)

is usually consistent with due process, as the U.S. Supreme Court has

long held both generally and even in relation to quo warranto specifically.

See United States v. Batchelder, 442 U.S. 114, 124 (1979) (acknowledging

the “settled rule” that “whether to prosecute and what charge to file or

bring before a grand jury are decisions that generally rest in the

prosecutor’s discretion”); see also Standard Oil Co. of Ind. v. Missouri ex

inf. Hadley, 224 U.S. 270, 289 (1912) (“Separate proceedings may be

instituted,—one to secure the civil judgment, and the other to enforce the

criminal law. Both cases may involve a consideration of the same facts;

and evidence warranting a judgment of ouster may be sufficient to

54

sustain a conviction for crime.”).

So long as “the ordinary person exercising ordinary common sense

can sufficiently understand” what a criminal law prohibits, U.S. Civ.

Serv. Comm’n v. Nat’l Ass’n of Letter Carriers AFL-CIO, 413 U.S. 548, 579

(1973), no constitutional vagueness problem arises from the possibility

that either criminal prosecution or quo warranto proceedings may follow.

We therefore hold that neither the alien-harboring statute nor the quo

warranto filing’s reliance on that statute was unconstitutionally vague

as applied to Annunciation House.

* * *

In short, we find no lawful reason to categorically forbid the

attorney general from filing a quo warranto action here. The writ’s long

history, our precedents, and constitutional text confirm that explicit

legislative authorization of the remedy is not a prerequisite to that filing.

Nor does any constitutional doctrine or statutory provision independently

bar the filing. As such, the trial court erred in refusing the attorney

general’s request for leave to file his quo warranto counterclaim, and we

reverse its order doing so.

III

Even that is not enough to finally dispose of this appeal, which

also includes a challenge to the trial court’s order enjoining the attorney

general from submitting any further records requests to Annunciation

House. The trial court held that §§ 12.151 and 12.152 of the Business

Organizations Code, which authorize such requests, are facially

unconstitutional, and the attorney general disputes that conclusion.

The parties also disagree over whether the records-request dispute has

been mooted. We hold that the dispute is not moot and that the statute

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is not facially unconstitutional.

A

First, we consider whether the records-request dispute is moot. If

so, that conclusion would have no effect on the separate dispute over quo

warranto that we addressed in Part II but would affect only the discrete

issue about the injunction concerning records requests.

The attorney general argues that he ceased pressing his records

request to Annunciation House well before the trial court ruled on it, thus

rendering the dispute moot. Alternatively, he argues that a different

trial-court ruling, in which the trial court itself referred to the records

request as “moot,” rendered the records dispute at least “procedurally

moot,” citing our decision in ERCOT, Inc. v. Panda Power Generation

Infrastructure Fund, LLC, 619 S.W.3d 628, 637 (Tex. 2021). Annunciation

House argues that the records dispute is not moot, as the attorney general

remains free to simply file more requests if there is no ruling that deems

the relevant requests unconstitutional.

We agree with Annunciation House that this dispute is not moot.

“Voluntary abandonment” of a challenged action “provides no assurance”

that the action will not recur and typically cannot render a case moot.

Matthews ex rel. M.M. v. Kountze ISD, 484 S.W.3d 416, 419–20 (Tex.

2016); see also United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953).

We see no way to characterize the attorney general’s purported

relinquishment of his records requests below as anything but a

voluntary abandonment of the challenged conduct. That conclusion is

particularly warranted here, where the attorney general simultaneously

claims to have abandoned the challenged conduct and appeals a court

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order enjoining that conduct. It is not “impossible for a court” to grant

Annunciation House relief from allegedly unconstitutional requests even

as the attorney general pursues his legal right to file such requests in this

very court. See Abbott v. Mexican Am. Legis. Caucus, 647 S.W.3d 681,

689 (Tex. 2022). We hold that the records-request controversy is not moot

and that we therefore have jurisdiction to reach its merits.

B

On the merits, the trial court ruled that the statutes authorizing

the attorney general’s initial records requests to Annunciation House,

codified at §§ 12.151 and 12.152 of the Business Organizations Code, are

facially unconstitutional. It also ordered that any further records

requests to Annunciation House be filed within this litigation, that the

same district court would retain jurisdiction over the case, that the

district court would conduct precompliance review as to any new

requests, and that this injunction would remain in effect for two years.

Because the injunction against further requests was grounded in the

trial court’s constitutional ruling, we turn to that ruling first.

1

Section 12.151 grants the attorney general authority “to inspect,

examine, and make copies, as [he] considers necessary[,] . . . of any

record” of a corporation. Section 12.152, in turn, states that the attorney

general “shall make a written request to a managerial official” when

examining the business of a corporation, “who shall immediately permit

the attorney general to inspect, examine, and make copies” of the relevant

records. (Emphasis added.) It is undisputed that the attorney general’s

agents who initially arrived at Annunciation House produced such a

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written request and demanded compliance immediately. It is also

undisputed that the agents threatened Annunciation House’s staff with

forfeiture of their corporate charter to secure that compliance, citing the

records-request statute’s penalty provision. See Tex. Bus. Orgs. Code

§ 12.155 (stating that a filing entity that “fails or refuses to permit the

attorney general to examine or make copies of a record . . . forfeits the

right of the entity to do business”).

The controlling case on this question, both parties agree, is City of

Los Angeles v. Patel, 576 U.S. 409 (2015). There, the City of Los Angeles

defended an ordinance requiring that hotel records “shall be made

available to any officer of the Los Angeles Police Department for

inspection.” Id. at 413. Hotel owners who refused to provide that access

could “be arrested on the spot” and face six months in jail and a $1,000

fine. Id. at 421. The City defended this scheme to the hilt, arguing that

the ordinance could not be read to “afford[] hotel operators any

opportunity whatsoever” for precompliance review of any records

requests, as any such opportunity “would [have] fatally undermine[d] the

scheme’s efficacy by giving operators a chance to falsify their records.” Id.

at 421, 427 (emphasis added). The Supreme Court held that the

ordinance was facially unconstitutional because it foreclosed what the

Fourth Amendment required: “an opportunity to obtain precompliance

review before a neutral decisionmaker,” only after which penalties like

arrest could attach. Id. at 420. Without prescribing the exact form such

review must take, the Court firmly rejected the no-review-whatsoever

approach, emphasizing the potential for the unbounded ordinance to “be

used as a pretext to harass hotel operators and their guests.” Id. at 421.

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Annunciation House argues that §§ 12.151 and 12.152 operate

identically to the Los Angeles ordinance and are thus similarly

unconstitutional. Specifically, it argues that § 12.152’s requirement

that “managerial official[s] . . . immediately permit” inspection provides

no opportunity for precompliance review before the penalties outlined in

§§ 12.155 and 12.156 attach, including the drastic penalty of forfeiture

of business privileges. In reply, the attorney general asks us not to read

the requirement to produce records “immediately” literally and to

instead hold that it inherently provides a reasonable time to comply. As

for the availability of precompliance review, the attorney general points

out that Annunciation House received such review here via a protective

order, as authorized by Rule of Civil Procedure 176.6(e), and that such

review is available to any “person commanded to . . . permit inspection

and copying of designated documents.” As the Supreme Court did not

specify the exact form precompliance review must take, see Patel, 576

U.S. at 422–23, the attorney general claims that this procedure satisfies

the Fourth Amendment.

We conclude that §§ 12.151 and 12.152 are not facially

unconstitutional. At the outset, we note that this Court “must construe

statutes to avoid constitutional infirmities.” City of Fort Worth v. Rylie,

602 S.W.3d 459, 468 (Tex. 2020); accord Quick, 7 S.W.3d at 115. As we

read Patel, the opinion does not proscribe administrative subpoenas and

requests generally or even forbid the attachment of penalties for failure

to comply. 576 U.S. at 422–23. Nor do we read the opinion’s categorical

rejection of Los Angeles’s essentially unreviewable records-request

ordinance to mandate cumbersome mechanisms for precompliance

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review. Id. As the attorney general’s inspection power therefore does not

inherently contravene the Fourth Amendment, the only question before

us is how to read § 12.152’s requirement that inspection and production

occur “immediately” upon a written request.

Both to dispel any specter of unconstitutionality and because it

best interprets the statute within the larger context of Texas law, we hold

that “immediately” in § 12.152 does not exclude the opportunity for

precompliance review before associated penalties attach. Instead, it

mandates the maximum possible expedition, which would be undermined

by a set deadline (such as “within ten days”). Specifically, we agree with

the attorney general that the term cannot reasonably be read literally,

as in requiring compliance “without lapse of time, without delay,” or

“instantly.” Immediately, Random House Dictionary of the English

Language (1987 ed.). Otherwise, no business owner who receives a

written request under § 12.152 could comply—providing physical

documents without even a momentary delay is a physical impossibility.

In other words, the question is not truly whether “immediately” can be

read in the literal sense of “instantaneously,” but what delay is

permissible within the meaning of the term as deployed in its context.

In answering that question, “it is our duty to uphold the validity of

[a] statute if it can be given a reasonable construction that will render

it constitutional.” Rowan Drilling Co. v. Sheppard, 87 S.W.2d 706, 707

(Tex. 1935). And when construing statutes against an existing legal

background, “we presume that the legislature uses statutory language

‘with complete knowledge of the existing law and with reference to it.’ ”

Amazon.com, Inc. v. McMillan, 625 S.W.3d 101, 106–07 (Tex. 2021)

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(citation omitted). The Fifth Circuit relied on that principle in Cruz, see

supra Part II.B.2, and we make use of it again here. In this context, the

presumption of legislative familiarity requires no great leap. Though

§ 12.152 was originally a provision of the Texas Miscellaneous Corporation

Laws Act, 57th Leg., R.S., ch. 205, art. 5.02, 1961 Tex. Gen. Laws 408, 415,

it was re-enacted as part of the newly organized Business Organizations

Code, see Act of May 13, 2003, 78th Leg., R.S., ch. 182, § 1 sec. 12.152,

2003 Tex. Gen. Laws 267, 408. At that time, Rule 176.6(e) already

governed administrative records requests, so the legislature presumably

understood any requirement that records be produced “immediately” as

subject to background legal principles. And, importantly, Rule 176.6(e)

specifically provided that protective orders may be sought “before the

time specified for compliance.” Tex. R. Civ. P. 176.6(e).

With all that in mind, we do not read the legislature’s decision to

require production “immediately” as one that allows literally no time

whatsoever to comply. Instead, to direct that production occur as soon as

practicable, the statute simply avoids specifying a precise deadline that

governs all cases. That reading allows the attorney general flexibility

in deciding when to mandate compliance—but it does not permit him to

withhold precompliance review altogether, whether by Rule 176.6(e)’s

protective orders or other provisions of Texas law. Nothing in the text

of § 12.151 or § 12.152 restricts that review, by protective orders or

otherwise, nor would we fulfill our judicial duty to constitutionally

construe the statute by placing such a problematic gloss on the text. See

Rylie, 602 S.W.3d at 468. We accordingly hold that §§ 12.151 and 12.152

satisfy the Fourth Amendment’s requirement for precompliance review

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as outlined in Patel. The trial court therefore erred in holding that these

provisions are facially unconstitutional.

We also note that the trial court grounded its injunction against

further requests in the attorney general’s supposed anti-Catholic bias

against Annunciation House, and it held that the requests ran afoul of

the “Save Chick-fil-A Law” codified at Government Code § 2400.002.

Annunciation House has not defended that ruling in this appeal. In the

record before us, we find no evidence to support the notion that the

attorney general pursued Annunciation House “based wholly or partly

on” the shelter’s association with the Roman Catholic Church or the

Christian faith more generally. Tex. Gov’t Code § 2400.002.

Having already stated the general rule that coordinate branches of

government receive a presumption of good faith, we note that Von

Dohlen v. City of San Antonio specifically applied that presumption to

accusations of adverse action under § 2400.002. 643 S.W.3d 387, 396

(Tex. 2022) (“Rather than assume the City would violate Chapter 2400,

we presume the City would comply with Chapter 2400, until the

contrary is shown.”). Absent any evidence that the attorney general’s

actions were motivated by Annunciation House’s Catholic practices

rather than a suspicion that it violated state criminal law, we disagree

with the trial court that § 2400.002 justified the injunction here.

* * *

Correcting the legal error underpinning the injunction requires

that the resulting injunction be vacated. See Tex. Educ. Agency v. Hous.

ISD, 660 S.W.3d 108, 116 (Tex. 2023) (“A trial court has no discretion to

misapply the law, however, and thus we review its legal determinations

de novo.”). Two extraordinary aspects of the injunction that we vacate,

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however, warrant further discussion so that they do not affect the case

on remand.

First, we note the injunction’s unusual and broad scope. The trial

court imposed a precompliance requirement on the attorney general with

respect to future efforts to request to examine Annunciation House’s

records. The court then claimed for itself the exclusive authority for the

next two years to supervise such precompliance. “[I]njunctions must be

narrowly drawn and precise.” Holubec v. Brandenberger, 111 S.W.3d 32,

40 (Tex. 2003) (quoting Brown v. Petrolite Corp., 965 F.2d 38, 51 (5th Cir.

1992)). To put it mildly, it is doubtful whether requiring a constitutional

officer of this State to solicit permission from a district court before

exercising his authority to request information relevant to the conduct of

a Texas corporation could satisfy these requirements.

Second, throughout its brief order granting the injunction in favor

of Annunciation House, the trial court chastised the attorney general and

attacked his motivations for investigating Annunciation House. The

court accused him, for example, of using the requests “as a pretext to

justify [his] harassment,” of “cho[osing] to harass a human rights

organization,” and of “selectively interpret[ing] or misus[ing] those [laws]

that can be manipulated to advance his own personal beliefs or political

agenda.” On remand, we remind the trial court of its “duty to extend to

the [attorney general]—a member of a coordinate branch—a presumption

of regularity, good faith, and legality.” Webster, 704 S.W.3d at 501. That

respect is owed to the coordinate branches by every level of the judiciary,

just as the judiciary expects the other branches to respect orders and

judgments that emanate from our branch of government. We do not, of

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course, ask the trial court to turn a blind eye to any evidence of bias or

wrongdoing if Annunciation House presents it on remand; rather, we

emphasize that courts must begin a case with the “presumption that the

[attorney general], no less than the judiciary, intends to comply with the

Constitution” unless and until evidence of such a serious accusation is

actually presented. Borgelt, 692 S.W.3d at 303.

The injunction largely rests on the constitutional and statutory

errors that we have resolved with respect to Business Organizations Code

§§ 12.151 and 12.152. Formally vacating an injunction for one reason

does not necessarily imply that everything else about the injunction was

proper, as these comments illustrate. Given our disposition, however, we

need not further examine these or other points.

2

Finally, we address the attorney general’s requested injunction to

halt Annunciation House’s operations. We note that the attorney general

has largely abandoned any request for such affirmative relief directly

from this Court as part of this appeal. To the extent the trial court denied

this injunction because of its above-considered rulings regarding quo

warranto’s unavailability in this case, of course, that denial also rested

upon legal error. Tex. Educ. Agency, 660 S.W.3d at 119. Faced with an

injunction denial that was legally erroneous, but without any compelling

argument that such an injunction ought to be granted now, we therefore

reverse and remand the denial of the attorney general’s injunction to the

trial court. Whether the attorney general may receive any injunctive

relief against Annunciation House’s operations, even as he pursues his

information in the nature of quo warranto, is not before us.

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IV

The trial court erred in denying the attorney general leave to file

an information in the nature of quo warranto. The trial court likewise

erred in granting Annunciation House a permanent injunction against

records requests by the attorney general. Finally, the trial court’s order

denying the attorney general’s request for injunctive relief relied on legal

error concerning the nature of quo warranto; should the attorney general

renew that request, the trial court must assess it in light of our holdings.

The judgment of the district court is reversed, the injunction it granted is

vacated, and the case is remanded for further proceedings consistent with

this opinion. We express no view as to the course or outcome of those

further proceedings.

Evan A. Young

Justice

OPINION DELIVERED: May 30, 2025

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