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
══════════
No. 22-0224
══════════

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.

2
 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.

3
 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.

4
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.”

5
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.

6
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

7
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).

8
 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

9
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

10
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.”

11
  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.

12
 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.

13
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

14
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

15
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

16
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

17
(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

18