Texas attorneys general traditionally issue legal opinions only when formally requested by certain public officials, such as legislators or agency heads. Those opinions are advisory in nature and are meant to provide guidance on unsettled questions of law, not to invalidate statutes or substitute for court rulings.
This long-standing practice shifted on Monday when Attorney General Ken Paxton released a 74-page unsolicited legal opinion addressing the constitutionality of race-related laws and policies in Texas. The opinion, designated KP-0505, asserts that more than 100 state laws, rules, and practices related to race- or sex-based initiatives violate the U.S. Constitution. It also warns that private companies implementing Diversity, Equity, and Inclusion (DEI) programs may face legal exposure under state and federal law.
Beyond its legal conclusions, the opinion also includes a direct political critique of U.S. Sen. John Cornyn (R-TX), who is expected to face Paxton in the 2026 Republican primary.
Scope of the Opinion
Paxton’s opinion addresses a wide range of state activities involving race or sex-based considerations. These include programs such as preferential contracting for minority-owned businesses, minority hiring or promotion goals within state agencies, and policies in higher education that consider race or sex in admissions, hiring, or financial assistance.
The document opens with philosophical and historical discussion before moving into constitutional analysis. Throughout, Paxton frames DEI initiatives as incompatible with equal protection principles and argues that both public entities and private actors risk violating civil rights laws if they continue such practices.
Although the opinion repeatedly uses language suggesting it has “declared” laws unconstitutional, attorney general opinions do not have the force of law. Texas courts have consistently held that statutes remain valid and enforceable unless struck down by a court or repealed by the Legislature.
Focus on a 1999 Cornyn Opinion
A notable portion of Paxton’s opinion revisits a 1999 attorney general opinion issued by then-Attorney General John Cornyn. Paxton argues that Cornyn “failed to confront” DEI in higher education and “added insult to injury” by deferring to pending litigation rather than issuing definitive guidance. Paxton further claims that this approach “refused” to resolve constitutional questions and allowed “decades of DEI and discriminatory practice to proliferate.”
The 1999 opinion, known as JC-0107, arose from an official request by a state senator. The question concerned whether a recent court ruling prevented public universities from considering race when awarding student financial assistance. At the time, the issue was pending before the U.S. Court of Appeals for the Fifth Circuit. Cornyn advised universities to wait for the court’s resolution before drawing broad conclusions.
Consistency With Past Attorney General Practice
Deferring to the courts when legal issues are actively being litigated is not unique to Cornyn’s tenure. Paxton himself has followed the same approach during his 12 years as attorney general.
In 2016, for example, Paxton declined to issue an opinion on the statutory definition of “ballot image” after a district attorney requested guidance. The issue was pending in court, and Paxton wrote at the time that declining to answer questions subject to ongoing litigation was a “long-standing policy” of the attorney general’s office. He emphasized that determining a law’s meaning or constitutionality ultimately belongs to the courts and that attorney general opinions are advisory only.
This history has prompted questions about why Paxton chose to issue an unsolicited opinion now, particularly one addressing matters that have been extensively litigated at both the state and federal levels.
Cornyn’s Response
Cornyn responded quickly to Paxton’s criticism, arguing that there was nothing for Paxton to “overrule” because the 1999 guidance was effectively withdrawn due to pending litigation. He stated that his approach was later validated when the Supreme Court held that race cannot be used in college admissions.
Cornyn also accused Paxton of misusing the attorney general’s office for political purposes and suggested the opinion could amount to an improper campaign activity, given Paxton’s declared challenge for Cornyn’s Senate seat.
Legal Effect and Broader Implications
Despite the sweeping language used in KP-0505, the opinion does not invalidate any law or policy on its own. Attorney general opinions do not carry enforcement power, and state agencies, universities, and private entities are not legally bound to follow them. Any determination that a statute or policy is unconstitutional must come from a court.
Still, such opinions can influence agency behavior, legislative debates, and future litigation strategies. By issuing a broad, unsolicited opinion that blends legal analysis with political criticism, Paxton has sparked debate not only over DEI policies but also over the proper role of the attorney general and the boundary between legal guidance and political advocacy.
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