Warren K. Paxton, in His Official Capacity as Attorney General of Texas Shawn Dick, in His Official Capacity as Williamson County District Attorney v. Isabel Longoria Cathy Morgan

Supreme Court of Texas

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No. 22-0224

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Warren K. Paxton, in His Official Capacity as Attorney General

of Texas; Shawn Dick, in His Official Capacity as Williamson

County District Attorney,

Appellants,

v.

Isabel Longoria; Cathy Morgan,

Appellees

═══════════════════════════════════════

On Certified Questions from the

United States Court of Appeals for the Fifth Circuit

═══════════════════════════════════════

Argued May 11, 2022

JUSTICE HUDDLE delivered the opinion of the Court.

This suit involves a pre-enforcement challenge to a recently

enacted Election Code provision that makes it an offense for certain

officials to “solicit[]” the submission of applications to vote by mail from

persons who have not requested such applications. The plaintiffs sued

in federal court to enjoin enforcement of this anti-solicitation provision

as well as another provision that imposes civil penalties for violations.

Two of the defendants, including the Texas Attorney General, sought

dismissal for lack of standing and based on sovereign immunity. The

district court granted a preliminary injunction, and the defendants

appealed. Concluding that standing and immunity are threshold issues

on appeal, the United States Court of Appeals for the Fifth Circuit

certified three questions to us: (1) whether one of the plaintiffs, a

volunteer deputy registrar, is a “public official” to whom the anti-

solicitation provision applies; (2) whether certain types of speech

constitute “solicitation” under that provision; and (3) whether the

Attorney General can enforce the civil penalties.

Although the parties indicated to the federal courts that they

were adverse on these questions, their briefing in this Court makes clear

that they now agree that the answer to the first and third questions is

no. We therefore answer “no” to the first and third questions based on

the parties’ agreement, and, due to the lack of adversity between the

parties on these issues, we limit the scope and binding effect of these

two answers to this case alone.

With respect to the second certified question, we answer that the

statute’s definition of “solicits” is not so narrowly limited as to cover only

seeking applications for violative mail-in ballots, nor is it so broad as to

cover speech that merely informs listeners that they may apply. Finally,

while we have not been asked to (and therefore do not) provide a

comprehensive definition of “solicits” under Election Code

Section 276.016(a)(1), we conclude that the scope of “solicits” is not

limited to a demand for the submission of an application for a mail-in

ballot.

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I. Background

During its second called session of 2021, the Legislature enacted

Senate Bill 1, the Election Integrity Protection Act of 2021. 87th Leg.,

2d C.S., ch. 1, § 1.01, 2021 Tex. Sess. Law Serv. ___. The stated purpose

of the Act was “to make all laws necessary to detect and punish fraud”

in connection with elections. Id. § 1.02. The Act made several changes

to the Election Code, two of which are relevant here.

First, the Act creates an offense for certain officials who

“knowingly . . . solicit[]” the submission of an application to vote by mail

from someone who did not request one:

A public official or election official commits an offense if the

official, while acting in an official capacity, knowingly:

(1) solicits the submission of an application to vote by mail

from a person who did not request an application . . . .

TEX. ELEC. CODE § 276.016(a).1 This provision does not apply if the

public official or election official “provided general information about

voting by mail, the vote by mail process, or the timelines associated with

voting.” Id. § 276.016(e)(1). Nor does it apply if the official “engaged in

the conduct . . . while acting in the official’s capacity as a candidate for

a public elective office.” Id. § 276.016(e)(2).

Second, the Act imposes a civil penalty on election officials

employed by the government who violate the Election Code:

1 Section 276.016(a) also prohibits public officials and election officials

from distributing vote-by-mail applications to persons who did not request

them, using public funds for third-party distribution of vote-by-mail

applications to those who did not request them, and completing a portion of a

vote-by-mail application and distributing it to an applicant. TEX. ELEC. CODE

§ 276.016(a)(2)–(4). Only subsection (a)(1) is at issue here.

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An election official may be liable to this state for a civil

penalty if the official: (1) is employed by or is an officer of

this state or a political subdivision of this state; and

(2) violates a provision of this code.

Id. § 31.129(b). This civil penalty may include “termination of the

person’s employment and loss of the person’s employment benefits.” Id.

§ 31.129(c). The statutory text makes plain that the anti-solicitation

and civil-penalty provisions are different in scope. Section 276.016(a)(1)

applies to a “public official or election official,” while Section 31.129

applies only to an “election official.”

The Election Code’s definition of “election official,” to whom both

the anti-solicitation and civil-penalty provisions apply, expressly

includes “an elections administrator.” Id. § 1.005(4–a)(C). Each of

Texas’s 254 counties may appoint an elections administrator for the

county. Id. §§ 31.031, .032. Among other things, an elections

administrator is required to perform the duties of the county’s voter

registrar.2 Id. § 31.043(1). The Election Code assigns a voter registrar

the responsibility of “conduct[ing] voter registration activities,” which

includes receiving applications from persons wanting to register to vote.

See id. §§ 12.004(a), 13.002(a).

The Election Code also permits a county’s voter registrar to

appoint one or more deputy registrars, including volunteer deputy

registrars (VDRs). Id. §§ 12.006(a), 13.031. The Election Code

2 Counties are not required to appoint an elections administrator. See

id. § 31.031(a) (stating that a county “may create the position of county

elections administrator for the county” (emphasis added)). A county may

instead have its tax assessor–collector or county clerk serve as voter registrar.

Id. § 12.001.

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prescribes the role of a VDR, which is to “distribute voter registration

application forms throughout the county and receive registration

applications submitted to the [VDR] in person.” Id. § 13.038. Upon

receipt of an application, a VDR must review it for completeness in the

applicant’s presence and return it for completion if necessary. Id.

§ 13.039. On receipt of a completed application, a VDR must deliver it

to the county’s voter registrar. Id. § 13.042.

Plaintiff Isabel Longoria was appointed in 2020 to serve as the

County Elections Administrator for Harris County. Plaintiff Cathy

Morgan is an Austin resident who serves as a VDR in Travis and

Williamson Counties. Longoria and Morgan sued Attorney General

Warren K. Paxton and the District Attorneys of Harris, Travis, and

Williamson Counties, all in their official capacities, in federal court.

Plaintiffs allege that Section 276.016(a)(1) violates the First and

Fourteenth Amendments both on its face and as applied to “truthful

speech encouraging people who are or may be eligible to vote by mail to

request applications for such mail ballots.” Plaintiffs seek a declaration

to that effect and an injunction against all defendants to prevent them

from enforcing Section 276.016(a)(1). Longoria also seeks an injunction

to forestall civil penalties under Section 31.129 for any alleged violations

of Section 276.016(a)(1).

Attorney General Paxton and the Williamson County District

Attorney, Shawn Dick, each moved to dismiss the suit.3 Both assert that

3 The District Attorneys of Harris County (Kim Ogg) and Travis County

(José Garza) each filed a stipulation in which they agreed not to enforce

Section 276.016(a)(1) in this case “until such time as a final, non-appealable

decision has been issued.”

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Plaintiffs lack standing and that Plaintiffs’ claims are precluded by

sovereign immunity because they failed to plausibly allege that they will

be subjected to prosecution or a civil-enforcement action for the speech

in which they wish to engage.

The district court concluded that both Plaintiffs had standing and

granted a preliminary injunction. Longoria v. Paxton, ___ F. Supp. 3d

___, 2022 WL 447573, at *10, *20 (W.D. Tex. Feb. 11, 2022). As to

Morgan, the court held that VDRs “likely qualify as public officials

under Section 276.016(a)(1).” Id. at *9. And the district court concluded

that Longoria established that Paxton had a sufficient connection with

enforcement of Section 276.016(a)(1) through the civil penalties in

Section 31.129 to establish an exception to Paxton’s sovereign-immunity

defense. Id. at *11–13. Finally, the court held that Plaintiffs were likely

to succeed on the merits of their claims because Section 276.016(a)(1)

“prohibits encouraging others to request an application to vote by mail

. . . through speech.” Id. at *17.

Paxton and Dick appealed the preliminary injunction. The Fifth

Circuit concluded there were two threshold issues on appeal: “whether

Plaintiffs have standing to pursue their claims and whether Longoria’s

claim against Paxton is barred by sovereign immunity.” Longoria v.

Paxton, No. 22-50110, 2022 WL 832239, at *1 (5th Cir. Mar. 21, 2022)

(per curiam). The court further concluded that these questions turn on

three “core state law issues”:

(1) the interpretation of the term “public official” under the

Texas Election Code; (2) the scope of “solicitation” within

the challenged provision; and (3) the identity of the state

officer tasked with enforcing the civil liability provision.

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Id. The Fifth Circuit therefore certified to us the following three

questions:

(1) Whether Volunteer Deputy Registrars are “public

officials” under the Texas Election Code;

(2) Whether the speech Plaintiffs allege that they

intend to engage in constitutes “solicitation” within

the context of Texas Election Code § 276.016(a)(1).

For example, is the definition narrowly limited to

seeking application for violative mail-in ballots? Is

it limited to demanding submission of an application

for mail-in ballots (whether or not the applicant

qualifies) or does it broadly cover the kinds of

comments Plaintiffs stated that they wish to make:

telling those who are elderly or disabled, for

example, that they have the opportunity to apply for

mail-in ballots?; and

(3) Whether the Texas Attorney General is a proper

official to enforce Texas Election Code § 31.129.

Id. at *6–7.

II. Discussion

A. The parties agree that Morgan, the VDR in this case, is not

a “public official” under Section 276.016(a)(1).

Both Paxton and Dick argue that Morgan failed to establish that

she has standing to pursue her claims. In his motion to dismiss, Paxton

argued that Morgan “alleges no facts suggesting that she will be

considered a ‘public official.’” Dick likewise asserted that Morgan failed

to plausibly allege or show that, as an unpaid volunteer, she is a “public

official” potentially subject to the provisions of Section 276.016(a)(1).

But neither defendant definitively argued to the district court that

Morgan was not a public official. And Paxton contended that the district

court should abstain under Railroad Commission of Texas v. Pullman

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Co., 312 U.S. 496 (1941), due to unsettled questions of state law,

including “whether Texas courts will treat [VDRs] as public officials

covered by Section 276.016(a)(1).” For her part, Morgan responded in

the district court that VDRs do “qualify as public officials under

Section 276.016(a)(1).”

The district court concluded that VDRs “likely qualify as public

officials under Section 276.016(a)(1).” 2022 WL 447573, at *9. It relied

on Government Code Section 22.304, also enacted as part of Senate

Bill 1. Section 22.304 defines “public official” for purpose of that section

only4 as “any person elected, selected, appointed, employed, or otherwise

designated as an officer, employee, or agent of this state, a government

agency, a political subdivision, or any other public body established by

state law.” TEX. GOV’T CODE § 22.304(a). In the Fifth Circuit, Plaintiffs

argued that this holding was correct.

The Fifth Circuit concluded that the question of whether a VDR

is a “public official” under Section 276.016(a)(1) was determinative of

Morgan’s standing. 2022 WL 832239, at *3. Given the parties’

respective positions at the time the Fifth Circuit certified its questions

to us, the court—quite reasonably—could have expected that the parties

would present competing views on whether Morgan qualifies as a “public

official” under Section 276.016(a)(1). Instead, all parties now agree that

she does not.

4 Government Code Section 22.304 governs the assignment of an

appellate panel to hear a proceeding for mandamus or injunctive relief under

Election Code Chapter 273 and prohibits a person, “including a public official,”

from attempting to influence the composition of the panel. TEX. GOV’T CODE

§ 22.304(b), (c).

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The Texas Constitution gives our Court jurisdiction to answer

certified questions of state law. TEX. CONST. art. V, § 3–c(a); see

Richards v. State Farm Lloyds, 597 S.W.3d 492, 497 n.6 (Tex. 2020)

(describing the answer to a certified question as “a constitutionally

permissible advisory opinion”). To accept a certified question, there

must exist some question of state law whose resolution is necessary to

resolve the parties’ dispute in the underlying case. See TEX. R. APP.

P. 58.1 (authorizing our Court to answer “determinative questions of

Texas law”). At the time this Court accepted the certified questions,

judicial resolution of this state-law question was necessary to resolve

the parties’ dispute. But that is no longer true, because the parties now

agree that Morgan is not a “public official” for purposes of

Section 276.016(a)(1). Put differently, the state-law question the Fifth

Circuit deemed determinative of whether Morgan has standing is no

longer disputed and therefore does not require resolution by this Court.

See id.

We have held that adversity between parties is a jurisdictional

prerequisite, as without such adversity there is no justiciable

controversy. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001);

Davis v. First Nat. Bank of Waco, 161 S.W.2d 467, 472 (Tex. [Comm’n

Op.] 1942); see also Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 446 (Tex. 1993) (noting courts lack jurisdiction absent “a real

controversy between the parties” (quoting Bd. of Water Eng’rs v. City of

San Antonio, 283 S.W.2d 722, 724 (Tex. 1955))). And appellate courts

have no jurisdiction to decide cases in which there is no live controversy.

City of Krum v. Rice, 543 S.W.3d 747, 749–50 (Tex. 2017). Here, we

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could exercise jurisdiction under Rule 58.1 to provide a reasoned answer

to the certified question based on an analysis of Section 276.016(a)(1)

and other authorities. See TEX. R. APP. P. 58.1. Nevertheless, the lack

of adversity between the parties counsels against exercising jurisdiction

to decide an important and novel state-law question that has binding

effect beyond this case. See In re Abbott, 628 S.W.3d 288, 298 (Tex. 2021)

(stating that “our legal system depends” on “the adversarial process”);

Sessions v. Dimaya, 138 S. Ct. 1204, 1232–33 (2018) (Gorsuch, J.,

concurring) (“[T]he crucible of adversarial testing is crucial to sound

judicial decisionmaking. We rely on it to ‘yield insights (or reveal

pitfalls) we cannot muster guided only by our own lights.’” (quoting

Maslenjak v. United States, 137 S. Ct. 1918, 1931 (2017) (Gorsuch, J.,

concurring))).5 We therefore conclude the proper course, based on the

lack of adversity between the parties as to whether Morgan is a “public

official” under Section 276.016(a)(1), is to answer “no” based solely on

the fact of the parties’ agreement, such that our response shall have no

effect beyond this case.6

5 It is for similar reasons we have held that an agreed judgment,

“rendered without a fully adversarial trial,” is not binding on other parties or

even admissible as evidence. State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d

696, 714 (Tex. 1996).

6 The parties’ changes in position in this Court seem to be an outgrowth

of the posture of this case—it is a pre-enforcement challenge, the resolution of

which could turn on whether Plaintiffs have standing and whether the

government is immune. In a criminal prosecution (or civil-enforcement action),

one ordinarily might expect the government to take a broad view of the

statute’s application and the defendant to take a narrow view. But to establish

(or defeat) a plaintiff’s standing in a pre-enforcement challenge, the plaintiff

has an incentive to argue that the statute does apply to her, while the

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B. Determining whether speech constitutes solicitation

under Section 276.016(a)(1) requires examination of the

words used and the surrounding context.

The second certified question asks whether particular speech in

which Plaintiffs allege they wish to engage constitutes solicitation

within Section 276.016(a)(1). The record includes numerous examples

of statements Plaintiffs allege they wish to make. It also includes

testimony regarding types of conduct in which Plaintiffs say they wish

to engage. Plaintiffs’ descriptions of the intended speech and conduct

are in many instances quite general.7 Recognizing the difficulty of

applying Section 276.016(a)(1) to these statements in the abstract and

without necessary context, the Fifth Circuit has not asked us to define

the precise contours of the term “solicits” as used in the statute. Nor

has it asked us to opine on whether each example proffered by Plaintiffs

does or does not constitute solicitation under Section 276.016(a)(1).

Instead, the court directs our focus to three general questions regarding

the term’s breadth:

 Is the definition narrowly limited to seeking applications for

violative mail-in ballots?

government has an incentive to argue it does not. The unusual dynamic

present here contributes to our reluctance to make wide-ranging proclamations

on the issues of state law presented.

7 For example, Longoria wishes to “affirmatively encourag[e] individual

voters to request an application to vote by mail” and “encourage[] voters

eligible to vote by mail to do so.” Longoria also testified that a county

commissioner told her to “do everything you can to encourage people to vote by

mail” but she felt the anti-solicitation provision prohibited her from doing

anything “proactive.”

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 Is the definition limited to demanding submission of an

application for mail-in ballots (whether or not the applicant

qualifies)?

 Does the definition broadly cover the kinds of comments

Plaintiffs stated that they wish to make: telling those who are

elderly or disabled, for example, that they have the

opportunity to apply for mail-in ballots?

1. Section 276.016(a)(1) is not narrowly limited to

seeking applications from those ineligible to vote by

mail.

The Fifth Circuit first asks whether the definition of “solicits” is

“narrowly limited to seeking application for violative mail-in ballots.”

2022 WL 832239, at *6. Plaintiffs urge us to read Section 276.016(a)(1)

in this way. They assert this reading avoids thorny constitutional

questions they contend would result from a broader reading and

therefore is required as a matter of constitutional avoidance. They also

contend this narrow and “more legalistic” interpretation is supported

because, when the Legislature makes solicitation a criminal offense, the

underlying conduct is “virtually always a crime or a civil infraction of

some kind.” See Solicitation, BLACK’S LAW DICTIONARY (11th ed. 2019)

(defining “solicitation” as “[t]he criminal offense of urging, advising,

commanding, or otherwise inciting another to commit a crime”).

Plaintiffs contend we should not ascribe the term its ordinary meaning

because, according to them, that would cause the statute to encompass

many communications with voters in which they are “requesting,

urging, encouraging, seeking, imploring, or inducing people to submit

mail-in ballot applications,” which, according to Plaintiffs, should not be

unlawful unless the person is ineligible to vote by mail.

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We must reject this interpretation, however, because it is

inconsistent with the statute’s plain text. See BankDirect Cap. Fin.,

LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86 (Tex. 2017) (“The text is the

alpha and the omega of the interpretive process.”). Under the canon of

constitutional avoidance, we should, “if possible,” interpret a statute in

a manner that avoids constitutional infirmity. Quick v. City of Austin,

7 S.W.3d 109, 115 (Tex. 1998). But this canon of construction applies

only when the statutory language is ambiguous. Iancu v. Brunetti, 139

S. Ct. 2294, 2301 (2019). That is not the case here.8

Although the statute does not define what it means to “solicit,” it

is positively clear about whom officials are prohibited from soliciting.

The statute does not prohibit solicitation merely of those ineligible to

vote by mail. Its text leaves no doubt that the prohibition extends more

broadly to the larger universe of persons who “did not request an

application.” TEX. ELEC. CODE § 276.016(a)(1). Plaintiffs seek to use the

alleged uncertainty over what speech constitutes solicitation to add

words to the portion of the statute that unambiguously describes the

object of the solicitation. They effectively ask us to rewrite the text to

prohibit solicitation of “submission of an application to vote by mail from

a person who did not request an application [and who is ineligible to vote

by mail].” This reading is contrary to the statute’s plain text, and we

therefore must reject it. See In re Fox River Real Est. Holdings, Inc., 596

8 We note that Paxton argued in the federal courts that

Section 276.016(a)(1) restricts only “government speech” and therefore poses

no threat of a constitutional violation. See Pleasant Grove City v. Summum,

555 U.S. 460, 467 (2009) (“The Free Speech Clause . . . does not regulate

government speech.”). We have not been asked about this issue, and we

therefore express no opinion on it.

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S.W.3d 759, 764 (Tex. 2020) (rejecting interpretation of a statute that

was “contrary to the statute’s text”); Hoskins v. Hoskins, 497 S.W.3d 490,

493–94 (Tex. 2016) (“When statutory text is clear and unambiguous, we

construe that text according to its plain and common meaning unless a

contrary intention is apparent from the statute’s context.”).

2. Solicitation is not limited to demanding submission

of a vote-by-mail application.

The Fifth Circuit next asks whether “solicits” is “limited to

demanding submission of an application for mail-in ballots (whether or

not the applicant qualifies).” 2022 WL 832239, at *6. Plaintiffs suggest

that the ordinary meaning of “solicit” includes speech that lacks the

insistence normally associated with a demand. According to Plaintiffs,

the term’s ordinary meaning includes speech that is far less forceful.

Indeed, under their view, solicitation includes all the following:

“requesting, urging, encouraging, seeking, imploring, or inducing.”

Paxton argues that the Legislature could not have intended to

sweep so broadly. He argues, for example, that “solicits” cannot include

mere encouragement of an action because the Legislature has used both

“solicits” and “encourages” in many statutes, indicating that they have

different meanings. See, e.g., TEX. EDUC. CODE § 37.152(a) (“A person

commits an offense if the person . . . solicits, encourages, directs, aids,

or attempts to aid another in engaging in hazing . . . .”); TEX. PENAL

CODE § 7.02(a)(2) (holding a person criminally responsible for another’s

offense if the person “solicits, encourages, directs, aids, or attempts to

aid the other person to commit the offense”); cf. TEX. ELEC. CODE

§ 13.031(a) (stating that the purpose of appointing VDRs is “[t]o

encourage voter registration”). Paxton urges us to define “solicits” to

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exclude mere encouragement and to require “importuning or strongly

urging.” But Paxton also concedes that stating “please fill out this

application to vote by mail” would constitute solicitation.

Whether a particular statement constitutes solicitation for

purposes of Section 276.016(a)(1) will, of course, be informed by the

precise words spoken and by surrounding context. We therefore do not

endeavor to articulate today a comprehensive definition of “solicits” as

the term is used in Section 276.016(a)(1). Nor do we express an opinion

as to whether any of the general categories of statements Plaintiffs say

they wish to make constitutes solicitation. We will leave for another

case, with a more developed record, the task of defining the term’s outer

reach. For today, we believe it is sufficient to hold that, for purposes of

Section 276.016(a)(1), “solicits” is not limited to demands that a person

submit an application to vote by mail. As Paxton acknowledges,

“solicits” includes statements that fall short of a demand, such as “please

fill out this application to vote by mail.”

3. Telling potential voters they have the opportunity to

apply for mail-in ballots does not constitute

solicitation under Section 276.016(a)(1).

Finally, the Fifth Circuit asks whether the statute “broadly

cover[s] . . . telling those who are elderly or disabled, for example, that

they have the opportunity to apply for mail-in ballots.” 2022 WL 832239,

at *6. We conclude speech of this nature falls outside the purview of

Section 276.016(a)(1) because it qualifies as “provid[ing] general

information about voting by mail, the vote by mail process, or the

timelines associated with voting,” which is expressly excluded from

Section 276.016(a). TEX. ELEC. CODE § 276.016(e)(1). The Legislature

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intended to distinguish between merely informing Texans of the option

to vote by mail and soliciting them to submit an application to vote by

mail when they have not requested one. Indeed, Paxton acknowledges

that stating “voting by mail is a great option if you can’t get to the polls”

would not qualify as solicitation. Thus, without expressing an opinion

as to any particular statement Plaintiffs may wish to make, we conclude

that Section 276.016(a)(1) does not include broad statements such as

telling potential voters that they have the opportunity to apply for mail-

in ballots.

C. The parties agree that Attorney General Paxton cannot

enforce Section 31.129 against Longoria, the elections

administrator in this case.

In this Court, the parties take the position that Paxton lacks

authority to seek civil penalties under Section 31.129. But the parties

took more measured positions in the federal courts. Paxton argued in

the district court only that Longoria failed to present evidence that he

had authority to enforce Section 31.129. As with the first certified

question, Paxton identified the question of whether he could seek civil

penalties as an unsettled state-law issue that justified Pullman

abstention. Longoria responded that Paxton’s unwillingness to admit or

deny whether he was authorized to enforce Section 31.129 was sufficient

to establish an exception to sovereign immunity. Longoria also relied

on another civil suit filed by Paxton relating to mail-in ballot

applications and public statements to suggest that Paxton “may well

invoke that same authority to enforce Section 31.129.”

The district court concluded that Paxton had a sufficient

connection to enforcement of Section 276.016(a)(1) through

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Section 31.129 that Longoria’s claims against him were not barred by

sovereign immunity. 2022 WL 447573, at *11–13. In the Fifth Circuit,

Paxton again argued only that Longoria failed to demonstrate whether

he had authority to enforce Section 31.129 without taking a definitive

position on the question. Plaintiffs responded that Paxton has the

requisite connection to enforcement of Section 31.129 because “the

Election Code and its context make clear that the Attorney General may

or must bring civil enforcement actions under the Election Code.”

Thus, as with the first certified question, the Fifth Circuit quite

reasonably expected that the parties would take adverse positions in

this Court on the question of the Attorney General’s authority to enforce

Section 31.129. Instead, the parties now agree that Paxton has no such

authority with respect to the parties before us. Accordingly, following

the rationale described in our response to the first certified question, we

answer the third certified question “no” based solely on the fact of the

parties’ agreement that Paxton lacks authority to enforce

Section 31.129, such that our response shall have no effect beyond this

case.

III. Conclusion

We answer the first and third certified questions “no” based solely

on the fact of the parties’ agreement. With respect to the second certified

question, we answer: (1) Section 276.016(a)(1)’s definition of “solicits” is

not narrowly limited to seeking application of violative mail-in ballots,

(2) solicitation under the statute is not limited to demands for

submission of an application to vote by mail, and

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(3) Section 276.016(a)(1) does not cover telling voters they have the

opportunity to apply for mail-in ballots.

Rebeca A. Huddle

Justice

OPINION DELIVERED: June 10, 2022

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