TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

JUDGMENT RENDERED DECEMBER 14, 2023

NO. 03-22-00188-CV

Appellant, RJR Vapor Co., LLC// Cross-Appellants, Glenn Hegar, Comptroller of Public Accounts of the State of Texas; the Office of the Comptroller of Public Accounts of the State of Texas; and Ken Paxton, Attorney General of the State of Texas v. Appellees, Glenn Hegar, Comptroller of Public Accounts of the State of Texas; the Office of the Comptroller of Public Accounts of the State of Texas; and Ken Paxton, Attorney General of the State of Texas// Cross-Appellee, RJR Vapor Co., LLC

APPEAL FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY BEFORE JUSTICES BAKER, TRIANA AND KELLY AFFIRMED IN PART, VACATED IN PART, DISMISSED IN PART – OPINION BY JUSTICE TRIANA

This is an appeal from the judgment signed by the trial court on April 4, 2022. Having reviewed the record and the parties’ arguments, the Court holds that there was error in the trial court’s judgment. Therefore, the Court affirms in part, vacates in part, and dismisses for want of jurisdiction in part the trial court’s judgment. The Court affirms that portion of the trial court’s judgment concluding that the phrase “made of tobacco or a tobacco substitute” within Texas Tax Code Section 155.001(15)(E) does not apply to the VELO products and thus they are not taxable tobacco products. The Court also affirms that portion of the trial court’s judgment requiring the Comptroller to issue a refund with interest to RJR Vapor. The Court vacates the portions of the trial court’s judgment declaring the phrase “made of tobacco or a tobacco substitute” unconstitutional within Tax Code Section 155.001(15)(E) and denying RJR Vapor’s request for a permanent injunction. The Court dismisses RJR Vapor’s claims for declaratory and injunctive relief for want of jurisdiction. Each party shall bear its own costs relating to this appeal, both in this Court and in the court below.