nd NSMs make identical tobacco products, which

were, in its view, the taxed subject matter.17 Therefore, the court reasoned, despite the “laudable”

goals of recovering health care costs to the State and reducing underage smoking, “imposing a tax

on only one class of identical products is not equal and uniform under Texas law and cannot be

upheld.”18 The State says that a difference in products may be a sufficient condition for upholding

different tax classifications, but it is not a necessary condition. The Coalition counters that,

pursuant to its test, the court of appeals appropriately sought to identify any difference between

settling manufacturers and NSMs and found none.

       We do not think the court of appeals’ analysis can be read as generously as the Coalition

suggests. In addition to its emphasis in the quotations above on the nature of the products, the court

repeated that refrain at least two more times. The court stated that there was “no indication in this

record that the taxed subject matter . . . differs even slightly when manufactured by [NSMs] versus

[settling manufacturers].”19 Elsewhere, it looked for “justif[ication] [for] the unequal treatment of

identical products.”20 Given the court’s earlier statement that its “focus must be on the subject of

the tax, not the entity being taxed,”21 it appears the court kept its word by focusing only on the

identical nature of the tobacco products manufactured by settling manufacturers and NSMs.



       16
            440 S.W.3d 304, 311.
       17
            See id.
       18
            Id.
       19
            Id.
       20
            Id.
       21
            Id.


                                                  10
        That constricted approach diverges from our settled precedent. We have made clear that,

“[a]t least where non-property taxes are concerned, the Equal and Uniform Clause generally only

prohibits unequal or multiform taxes that are imposed on members of the same class of

taxpayers.�