5th Circuit Court of Appeals
The Woodlands Pride, et al. v. Paxton, et al.
No. 23-20480 2/25/26
Issue:
Should a permanent injunction prohibiting prosecutors and the Attorney General from enforcing 2023’s SB 12, the so-called “public drag show ban”—which regulates sexually oriented performances on public property and in the presence of minors—stand because the statute violates the First Amendment?
Holding:
No. The panel denied rehearing, withdrew its Nov. 6, 2025 opinion, and substituted a new opinion, which vacated a permanent injunction on two of three provisions from SB 12. The panel concluded that only one of the five plaintiffs had standing to proceed (and can proceed only against provisions related to the Office of the Attorney General’s civil enforcement powers against sexually oriented performances at a commercial enterprise in the presence of minors). The panel remanded this issue for the district court to consider the First Amendment implications in light of Moody v. NetChoice, 603 U.S. 707, 723 (2024). The panel lifted the permanent injunction from the other two provisions from SB 12: Penal Code §43.28 and Local Gov’t Code §243.0031(b). Read opinion.
Commentary:
This opinion does not rule one way or the other as to whether the “public drag show ban,” on its face, violates the Free Speech Clause of the First Amendment. Instead, the facial constitutionality of the law will need to be litigated in district court first. Recall that the central issue in a facial constitutionality challenge is whether a substantial number of the challenged law’s applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep. Regardless of how the district court judge rules on that question, expect further appeal to the Fifth Circuit and also, potentially, the United States Supreme Court before we have a final answer.
Meanwhile, if presented with a case that appears to fit the elements of Penal Code §43.28, readers should review the notes on SB 12 from pp.16-17 of TDCAA’s 2023–25 Legislative Update book. As noted there in more detail, that legislation may make it very difficult to enforce criminally, potentially making civil or regulatory enforcement under other provisions of that bill a better option.
Attorney General Opinion Requests
RQ-0634-KP 3/4/26
Issue:
What authority do counties have to impose development and other moratoria on certain energy and data facilities beyond existing road-use, subdivision, or other expressly delegated regulatory powers? Read opinion request.
Requested by:
Edgar J. Garrett, Jr., Delta County Attorney
2026 Primary Election Results
TDCAA has put together a chart of prosecutor primary winners from the March 3 elections (as well as those headed to run-offs). See the results here.