# Woodlands Pride v. Paxton

> Court of Appeals for the Fifth Circuit · November 6, 2025

URL: https://www.frixlaw.com/law-library/cases/11198648

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 6, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Private Civil Federal
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11198648

## How later opinions describe it (automated extraction)

- noting “significant overlap” between the redressability and traceability inquiries and Ex parte Young’s application

## Opinion text

Case: 23-20480 Document: 286-1 Page: 1 Date Filed: 11/06/2025

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 6, 2025
No. 23-20480
Lyle W. Cayce
____________ Clerk

The Woodlands Pride, Incorporated; Abilene Pride
Alliance; Extragrams, L.L.C.; 360 Queen Entertainment,
L.L.C.; Brigitte Bandit,

Plaintiffs—Appellees,

versus

Warren Kenneth Paxton, In an official capacity as Attorney General
of Texas; Brett Ligon, In an official capacity as District Attorney of
Montgomery County; Montgomery County, Texas; James
Hicks, In an official capacity as District Attorney of Taylor County;
Taylor County, Texas; City of Abilene, Texas,

Defendants—Appellants.
______________________________

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:23-CV-2847
______________________________

Before Dennis, Southwick, and Engelhardt, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
A Texas law regulates sexually oriented performances on public
property and in the presence of minors. A drag performer and others in the
drag industry brought a pre-enforcement challenge, alleging that the law
Case: 23-20480 Document: 286-1 Page: 2 Date Filed: 11/06/2025

No. 23-20480

facially violates the First Amendment. 1 After a two-day bench trial, the
district court agreed with the plaintiffs and permanently enjoined the
appellants from enforcing the law. We vacate that injunction and remand.
I.
A.
Texas Senate Bill 12 (“S.B. 12”) regulates “sexually oriented
performances” on public property and in the presence of minors. See Tex.
Health & Safety Code Ann. § 769.002; Tex. Loc. Gov’t Code
Ann. § 243.0031; Tex. Penal Code Ann. § 43.28. A “sexually oriented
performance” is “a visual performance” that (1) features a performer who
“is nude” or “engages in sexual conduct,” and (2) “appeals to the prurient
interest in sex.” Tex. Penal Code Ann. § 43.28(a)(2).
For the first prong, S.B. 12 defines the relevant conduct. “Nude”
means “entirely unclothed” or “clothed in a manner that leaves uncovered
or visible through less than fully opaque clothing any portion of the breasts
below the top of the areola of the breasts, if the person is female, or any
portion of the genitals or buttocks.” Tex. Bus. & Com. Code Ann. §
102.051(1). “Sexual conduct” means: (1) “the exhibition or representation,
actual or simulated, of sexual acts, including vaginal sex, anal sex, and
masturbation”; (2) “the exhibition or representation, actual or simulated, of
male or female genitals in a lewd state, including a state of sexual stimulation
or arousal”; (3) “the exhibition of a device designed and marketed as useful
primarily for the sexual stimulation of male or female genitals”; (4) “actual
contact or simulated contact occurring between one person and the buttocks,
breast, or any part of the genitals of another person”; or (5) “the exhibition
_____________________
1
Plaintiffs use the word “drag” to describe their activities and they call the law
that they challenge a “drag ban.” The text of the law does not include the word “drag.”

2
Case: 23-20480 Document: 286-1 Page: 3 Date Filed: 11/06/2025

No. 23-20480

of sexual gesticulations using accessories or prosthetics that exaggerate male
or female sexual characteristics.” Tex. Penal Code Ann. § 43.28(a)(1).
As for the second prong, Supreme Court precedent is instructive. 2 To
appeal to the “prurient interest in sex,” material, at a minimum, must be “in
some sense erotic.” Ashcroft v. ACLU, 535 U.S. 564, 579 (2002).
B.
S.B. 12 regulates sexually oriented performances in three ways.
Section One prohibits a “person who controls the premises of a commercial
enterprise” from “allow[ing] a sexually oriented performance to be
presented on the premises in the presence of an individual younger than 18
years of age.” Tex. Health & Safety Code Ann. § 769.002(a). It is
enforced by the Attorney General of Texas, see id. § 769.002(c), who is an
appellant here.
Section Two authorizes municipalities and counties to “regulate
sexually oriented performances as the municipality or county considers
necessary to promote the public health, safety, or welfare.” Tex. Loc.
Gov’t Code Ann. § 243.0031(b). In exercising this power, municipalities

_____________________
2
When interpreting undefined terms in state statutes, the Supreme Court of Texas
“presume[s] that the Legislature uses statutory language with complete knowledge of the
existing law and with reference to it.” Amazon.com, Inc. v. McMillan, 625 S.W.3d 101, 106–
07 (Tex. 2021) (cleaned up). “Prurient interest in sex” is a term of art coined by the United
States Supreme Court as one part of the “obscenity” definition. See Roth v. United States,
354 U.S. 476, 487 (1957) (“Obscene material is material which deals with sex in a manner
appealing to prurient interest.”); Miller v. California, 413 U.S. 15, 24 (1973) (building on
Roth to clarify three-part test for obscene material, including “appeal[s] to the prurient
interest in sex” as one element). We conclude the Texas Legislature invoked the Supreme
Court’s description of a “prurient interest in sex” by using this phrase, and that
jurisprudence guides what conduct is arguably proscribed by S.B. 12. See infra Section II.A
(explaining injury-in-fact analysis for Article III standing in pre-enforcement First
Amendment challenges).

3
Case: 23-20480 Document: 286-1 Page: 4 Date Filed: 11/06/2025

No. 23-20480

and counties may not authorize a sexually oriented performance on public
property or in the presence of individuals under the age of 18. Id. §
243.0031(c). Montgomery County, Taylor County, and the City of Abilene
are the appellants to which Section Two confers authority.
Section Three establishes a Class A misdemeanor for engaging in a
sexually oriented performance either (1) “on public property at a time, in a
place, and in a manner that could reasonably be expected to be viewed by a
child”; or (2) “in the presence of an individual younger than 18 years of age.”
Tex. Penal Code Ann. § 43.28(b). In Texas, district and county
attorneys enforce state criminal laws. See State v. Stephens, 663 S.W.3d 45,
49–51 (Tex. Crim. App. 2021). Two appellants are authorized to enforce
Section Three in their respective jurisdictions: Brett Ligon, the district
attorney for Montgomery County; and James Hicks, the district attorney for
Taylor County.
II.
A.
S.B. 12 has not been enforced yet. The plaintiffs—The Woodlands
Pride, Inc.; Abilene Pride Alliance; 360 Queen Entertainment, LLC;
Extragrams LLC; and Brigitte Bandit—brought a pre-enforcement challenge
under 42 U.S.C. § 1983, alleging that the law facially violates the First and
Fourteenth Amendments. The district court held a two-day bench trial,
concluded that S.B. 12 is a facially unconstitutional restriction on speech, and
enjoined the Attorney General of Texas, the City of Abilene, Taylor County,
Montgomery County, and four district attorneys from enforcing it. See
Woodlands Pride, Inc. v. Paxton, 694 F. Supp. 3d 820, 851 (S.D. Tex. 2023).

4
Case: 23-20480 Document: 286-1 Page: 5 Date Filed: 11/06/2025

No. 23-20480

The appellants ask us to vacate the injunction. 3 Their first argument on
appeal is that the plaintiffs lack standing. We review a district court’s ruling
on standing de novo. Turtle Island Foods, S.P.C. v. Strain, 65 F.4th 211, 215
(5th Cir. 2023).
Standing “is not dispensed in gross.” TransUnion LLC v. Ramirez,
594 U.S. 413, 431 (2021). Plaintiffs “must demonstrate standing for each
claim that they press against each defendant, and for each form of relief that they
seek.” Murthy v. Missouri, 603 U.S. 43, 61 (2024) (emphasis added)
(quotation marks and citation omitted). When plaintiffs seek injunctive relief,
“for every defendant, there must be at least one plaintiff with standing to seek
[the] injunction.” Id. So for each appellant here, at least one plaintiff must
have “(1) an ‘injury in fact’ that is ‘concrete and particularized’ and ‘actual
or imminent’; (2) is fairly traceable to th[at] defendant’s actions; and (3) is
likely to be redressed by a favorable decision.” Turtle Island Foods, 65 F.4th
at 215 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
In pre-enforcement free speech challenges, a plaintiff “need not have
experienced ‘an actual arrest, prosecution, or other enforcement action’ to
establish standing.” Barilla v. City of Houston, 13 F.4th 427, 431 (5th Cir.
2021) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)).
Chilled speech or self-censorship is an injury in fact if a plaintiff shows that
(1) he intends to engage in a course of conduct arguably affected with a
constitutional interest; (2) the course of action is arguably proscribed by
statute; and (3) there is a credible threat of prosecution under the statute.

_____________________
3
Two defendants at the district court—Travis County district attorney, Delia
Garza, and Bexar County district attorney, Joe D. Gonzalez—did not appeal the district
court’s injunction.

5
Case: 23-20480 Document: 286-1 Page: 6 Date Filed: 11/06/2025

No. 23-20480

Turtle Island Foods, 65 F.4th at 215–16 (citing Susan B. Anthony List, 573 U.S.
at 159).
A plaintiff “must support each element of standing ‘with the manner
and degree of evidence required at the successive stages of the litigation.’”
Murthy, 603 U.S. at 58 (quoting Lujan, 504 U.S. at 561). When a case has
proceeded to final judgment, standing “must be supported adequately by the
evidence adduced at trial.” El Paso County v. Trump, 982 F.3d 332, 338 (5th
Cir. 2020) (cleaned up).
B.
We start with whether—and to what extent—each plaintiff has
standing. To make this determination, we rely on the evidence presented at
trial. See id.
1.
The Woodlands Pride, Inc. hosts an annual pride festival in
Montgomery County, Texas. Children attend the festival, which includes on-
stage drag performances. Woodlands Pride often says that its festival is “a
reflection of a family-oriented community.” It “want[s] to make sure” that
this message of “family-oriented community” is “pushed out through [the]
music that’s played, [and] through everything you see,” including “what’s
happening on the stage.” To achieve this objective, a Woodlands Pride board
member approves the music playlists and meets with all performers to “talk
about dos and don’ts.”
When asked by the district court whether the drag performances are
“specifically tailored to a family aspect,” the Woodlands Pride representa-
tive testified: “Our performances aren’t specifically tailored to a family
aspect, but they are tailored to mostly ensuring that there’s no bad language
in music and that it is a festival for everybody.” “For lack of better terms,”

6
Case: 23-20480 Document: 286-1 Page: 7 Date Filed: 11/06/2025

No. 23-20480

the representative testified, “this is a family friendly drag performance.”
And he confirmed that this is true for all Woodlands Pride performances.
The Woodlands Pride representative also testified that he could
“confidently describe to [the drag performers] how to avoid making a
performance appear that it appeals to the prurient interest in sex.” There has
never been any nudity at any of Woodland Pride’s performances, 4 no
exhibition or representation of actual or simulated sexual acts or genitals, and
no sexual gesticulations with exaggerated prosthetic penises. The performers
“do a Conga line type thing and put their hands on each other’s hips,” and
sometimes touch each other—including a “portion of their buttocks”—
while dancing, but the representative testified that it is “just a dance routine”
and does not appeal to the prurient interest in sex. He also testified that some
of the performers may “twerk.”
The Woodlands Pride festival also has vendors, including STI and
STD testing vendors who hand out condoms and sexual lubricant. The
plaintiffs argue that passing out condoms and sexual lubricant is arguably
“the exhibition of a device designed and marketed as useful primarily for the
sexual stimulation of male or female genitals.”
None of the Woodlands Pride conduct introduced at trial arguably
amounts to a “sexually oriented performance.” A vendor handing out
condoms and sexual lubricant is not “a visual performance,” nor are STD
and STI testing vendors “performers.” See Tex. Penal Code Ann. §

_____________________
4
After testifying several times that there is no nudity during the performances,
including as defined by Tex. Bus. & Com. Code Ann. § 102.051(1)(B), the
representative testified on redirect that some performers exhibited nudity as defined by
S.B. 12 because the performers showed cleavage and a portion of their buttocks. Only one
exhibit introduced into evidence at trial depicts a Woodlands Pride drag performer’s outfit.
The performer is wearing what appears to be a long-sleeved leotard with fishnet tights.

7
Case: 23-20480 Document: 286-1 Page: 8 Date Filed: 11/06/2025

No. 23-20480

43.28(a)(2). As to the drag performances, even if making contact with
another performer’s buttocks is arguably “sexual conduct” under S.B. 12, it
is not proscribed if it does not appeal to the prurient interest in sex. None of
the trial evidence indicates that the performances are “in some sense erotic.”
See Ashcroft, 535 U.S. at 579. Because Woodlands Pride does not intend to
engage in conduct that is arguably proscribed by S.B. 12, it does not have
standing to seek an injunction against any of the appellants.
2.
Abilene Pride Alliance is an organization based in Abilene, Texas,
which is in Taylor County. Abilene Pride hosts various community-based and
fundraising events, including drag brunches, drag bingo, and a pride parade
and festival. There is no age restriction for Abilene Pride’s events and
Abilene Pride asks all performers to “[p]lease be age appropriate.”
There is no nudity, as defined by S.B. 12, at Abilene Pride’s drag
performances. Nor is there actual or simulated sex or masturbation. Drag
performers for Abilene Pride’s events wear a variation of sequins, big hair,
wigs, breastplates, hip pads, packers, and exaggerated jewelry. 5 A typical
Abilene Pride drag performance involves “dancing, lip syncing, engaging
with the audience by hugging, kissing on the cheek, [and] sometimes
bumping hips.” A drag performer’s buttocks have “come into contact with
attendees” on a “a few occasions where the venue has been crowded and as
the entertainer was moving to engage with the crowd, they [sic] bumped into
some folks.” Performers also “[o]ccasionally” “do a hip bump with one of
the audience members.” Performers may have sat in audience members’ laps

_____________________
5
Breastplates are prosthetic breasts. Hip pads are prosthetics that exaggerate the
appearance of the performer’s buttocks. Packers are prosthetics that drag performers wear
under clothing to create the appearance of male genitalia.

8
Case: 23-20480 Document: 286-1 Page: 9 Date Filed: 11/06/2025

No. 23-20480

too, but the Abilene Pride president provided conflicting testimony on this. 6
Drag performers’ breasts or breastplates come into contact with attendees
only when giving front-facing hugs or during “accidental bumping.”
Abilene Pride’s president testified that he does not think that Abilene
Pride’s performances involve sexual gestures or gesticulations. He is
nonetheless concerned that others might think that the performances violate
S.B. 12 because Abilene Pride has had protestors at its events before and, on
one occasion, someone called the police. 7 The public health department has
also attended Abilene Pride’s festival to share information and hand out free
condoms and sexual lubricant. As with the Woodlands Pride vendors who
passed out condoms and sexual lubricant, the plaintiffs contend that this is
arguably proscribed by S.B. 12.
None of the Abilene Pride conduct introduced at trial arguably
amounts to a “sexually oriented performance.” First, that people have
protested Abilene Pride’s events before has no bearing on whether S.B. 12
arguably proscribes the performances. Second, giving front facing hugs and
accidentally bumping into others are common interactions that do not
inherently appeal to the prurient interest in sex. Nor does the trial record
contain evidence indicating that under the circumstances described here,
these common interactions are “in some sense erotic.” See Ashcroft, 535 U.S.
at 579. So even if these actions constitute “actual . . . or simulated contact
occurring between one person and the buttocks, breast, or any part of the of
_____________________
6
He testified that drag performers have never sat in the laps of attendees at any of
the events that he has attended. His written declaration, however, stated: “On some
occasions our drag performers give front-facing hugs or hip bumps to audience members or
even sit in their laps.” After the attorney read him this statement on cross-examination, he
testified that performers “usually will just sit and continue lip syncing,” and that he has
never observed lap dances.
7
The police arrived and asked questions but left without taking further action.

9
Case: 23-20480 Document: 286-1 Page: 10 Date Filed: 11/06/2025

No. 23-20480

the genitals of another person,” they are not arguably proscribed by S.B. 12.
Tex. Penal Code Ann. § 43.28(a)(1)(D). And like the STI and STD
testing vendors at Woodlands Pride’s events, handing out condoms and
sexual lubricant is not “a visual performance,” nor is the public health
department a “performer.”
Because Abilene Pride does not intend to engage in conduct that is
arguably proscribed by S.B. 12, it does not have standing to seek an injunction
against any of the appellants.
3.
360 Queen Entertainment, LLC is a drag production company that
books drag queens to perform on the patio of Tomatillos Restaurant & Bar in
San Antonio. Tomatillos is owned by the father of 360 Queen’s owner. The
restaurant is in a strip mall with several other businesses that can view the
patio “very clearly.” 360 Queen and Tomatillos have an agreement that on
show days, 360 Queen “controls” the patio from the morning until the show
ends. Tomatillos provides restaurant service to the audience but is not
otherwise involved. 360 Queen sells the tickets and decides who enters the
show through the patio’s primary entrance. While 360 Queen tries to restrict
restaurant customers from entering the patio via the dining room, it has “had
instances where children have run into the patio through [the] show; not
because they have any interest in watching the drag show itself, but because
there’s a field in the back where a lot of kids tend to go and play while their
parents are dining.”
360 Queen does not typically allow children to attend its shows. This
is not because the shows are “sexual in nature” or “detrimental to children,”
but rather to “create an environment where adults [can] enjoy dinner, enjoy
drinks, enjoy entertainment, but not necessarily have to do it around other
people’s kids.” It makes exceptions to this rule, however. The owner

10
Case: 23-20480 Document: 286-1 Page: 11 Date Filed: 11/06/2025

No. 23-20480

testified: “There have been situations where there are families dining inside
and they have children with them . . . these families are very well aware of
what drag is. And they have pleaded with us to allow them to come out onto
the patio. And we have made exceptions in the past and allowed children to
observe our drag show.”
A picture introduced at trial depicts a 360 Queen drag performer who
is fully clothed in a red dress and holding dollar bills. A different picture
shows a 360 Queen drag performer who is wearing what appears to be a
leotard. The 360 Queen owner described this outfit as “a very short leotard”
and explained that the performer is “wearing butt pads that reveal her
buttocks.” Both images also demonstrate how the public can easily view the
patio.
360 Queen performances include twerking—“a form of expression
where you put your hands on your knees essentially and move your buttocks
up and down rapidly”—and “death drops”—a dance move “where a
performer will tuck one of their [sic] feet or legs behind their [sic] butt and
then fall to the floor with the other leg extended.” When asked whether the
performers “simulate contact with the buttocks of another person,” the
owner testified that the performers sit on customers’ laps while wearing
thongs and one performer invited a “handsome” male customer “to spank
her on the butt.” When asked whether the performers “ever perform
gesticulations while wearing prosthetics,” the owner testified that in 360
Queen’s most recent show, a drag queen “wore a breastplate that was very
revealing, pulsed her chest in front of people, [and] put her chest in front of
people’s faces.”
As to whether 360 Queen performances include nudity, the owner
testified that a performer once had a wardrobe malfunction where a

11
Case: 23-20480 Document: 286-1 Page: 12 Date Filed: 11/06/2025

No. 23-20480

breastplate fell out and that some performers “wear sort of string bikinis that
will cover the nipples but be very, very revealing around the buttocks.”
Based on the evidence introduced at trial, 360 Queen’s performances
arguably include proscribed conduct. The owner described one performance
where a drag queen, who was wearing a “very revealing” breastplate pulsed
the breastplate in front of people and put the breastplate in people’s faces.
This arguably constitutes “the exhibition of sexual gesticulations using . . .
prosthetics that exaggerate . . . female sexual characteristics.” See Tex.
Penal Code Ann. § 43.28(a)(1)(E). He also described a second
performance where an audience member was invited to spank a performer’s
buttocks. This arguably constitutes “actual contact or simulated contact
occurring between one person and the buttocks . . . of another person.” Id. §
43.28(a)(1)(D). Both performances are arguably “in some sense erotic,” see
Ashcroft, 535 U.S. at 579, and the owner testified that minors are sometimes
present.
Because 360 Queen only holds performances in San Antonio, its
claimed injury is not traceable to Abilene, Taylor County, Montgomery
County, or the district attorney appellants. The Attorney General is the only
appellant who 360 Queen could have standing to assert its claims against.
Recall that the Attorney General enforces Section One, which prohibits a
“person who controls the premises of a commercial enterprise” from
“allow[ing] a sexually oriented performance to be presented on the premises
in the presence of an individual younger than 18 years of age.” Tex.
Health & Safety Code Ann. § 769.002(a) (emphasis added).
The Attorney General argues that 360 Queen does not “control” the
premises because a third party owns Tomatillos. Control is not necessarily
synonymous with ownership, however. See Control, Black’s Law
Dictionary (11th ed. 2019) (defining “Control” as, inter alia, “[t]o

12
Case: 23-20480 Document: 286-1 Page: 13 Date Filed: 11/06/2025

No. 23-20480

exercise power or influence over”). Again, for a pre-enforcement First
Amendment challenge, the question is whether a plaintiff’s conduct is
arguably proscribed by the statute. Turtle Island Foods, 65 F.4th at 215–16.
“Arguably proscribed” does not require that the plaintiff’s interpretation of
the challenged law be the best interpretation. Id. at 218. The owner of 360
Queen testified that 360 Queen controls the patio on show days, sells the
tickets, and decides who enters the show through the patio’s primary
entrance. Put otherwise, 360 Queen “exercise[s] power or influence” over
the premises. See supra Black’s Law Dictionary. That is sufficient
for this posture. 8
Our determination that 360 Queen seeks to engage in arguably
proscribed conduct does not conclude the standing inquiry. It does not even
conclude the injury-in-fact inquiry. To satisfy the injury-in-fact requirement,
the conduct must be arguably affected with a constitutional interest and there
must be a credible threat of enforcement. Turtle Island Foods, 65 F.4th at 215–
16. If an injury in fact is established, it must also be traceable to the Attorney
General and redressable by the injunction sought. Id. at 215. “In pre-
enforcement First Amendment challenges like this one, we assume a credible
threat of prosecution in the absence of compelling contrary evidence, so long

_____________________
8
In a footnote, the Attorney General asserts this same position—that 360 Queen
does not “control” Tomatillos—to argue that 360 Queen’s claims against him run afoul of
sovereign immunity. He correctly states that for Ex parte Young to apply, the defendant-
official “must have ‘some connection with the enforcement of the [challenged] act.’” Tex.
All. for Retired Ams. v. Scott, 28 F.4th 669, 672 (5th Cir. 2022) (emphasis in original)
(quoting Ex parte Young, 209 U.S. 123, 157 (1908)). But the Attorney General has more
than some connection with the enforcement of Section One. He has the sole authority to (1)
recover civil penalties for Section One violations and (2) obtain injunctions to restrain
Section One violations. See Tex. Health & Safety Code Ann. § 769.002(c). He
therefore has the “particular duty” to enforce—that is, to compel or constrain compliance
with—Section One, so the injunction 360 Queen seeks would prevent the purported
constitutional violation that 360 Queen fears. See Tex. All. for Retired Ams., 28 F.4th at 672.

13
Case: 23-20480 Document: 286-1 Page: 14 Date Filed: 11/06/2025

No. 23-20480

as the challenged law is non-moribund.” Inst. for Free Speech v. Johnson, 148
F.4th 318, 329 (5th Cir. 2025) (cleaned up).
Although it “falls only within the outer ambit of the First
Amendment’s protection” and is subject to restrictions, Tex. Ent. Ass’n, Inc.
v. Hegar, 10 F.4th 495, 509 (5th Cir. 2021) (quoting City of Erie v. Pap’s A.M.,
529 U.S. 277, 289 (2000)), nude dancing generally constitutes expressive
conduct, id. (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991)).
360 Queen’s performances are therefore arguably affected with a constitu-
tional interest. 9 We also assume a credible threat of enforcement, given the
lack of evidence demonstrating otherwise and because S.B. 12 is non-
moribund. See Inst. for Free Speech, 148 F.4th at 329. 360 Queen has
established an injury in fact.
Traceability and redressability are the final hurdles for standing. 360
Queen satisfies these “dual elements” if its claimed injury is “fairly traceable
to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court” and it is “likely,
as opposed to merely speculative, that the injury will be redressed by a

_____________________
9
We have genuine doubt, however, that pulsing prosthetic breasts in front of
people, putting prosthetic breasts in people’s faces, and being spanked by audience
members are actually constitutionally protected—especially in the presence of minors.
While nude dancing receives some constitutional protection, “intentional contact between
a nude dancer and a bar patron is conduct beyond the expressive scope of the dancing itself.
The conduct at that point has overwhelmed any expressive strains it may contain. That the
physical contact occurs while in the course of protected activity does not bring it within the
scope of the First Amendment.” Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1253 (5th
Cir. 1995). “It is possible to find some kernel of expression in almost every activity a person
undertakes . . . but such a kernel is not sufficient to bring the activity within the protection
of the First Amendment.” Id. (quoting City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989)).
Even though the performers here are not fully nude, Hang On’s reasoning is persuasive. At
a minimum, Hang On confirms that each action in a performance is not necessarily
protected even if the performance as a whole may receive some constitutional protection.

14
Case: 23-20480 Document: 286-1 Page: 15 Date Filed: 11/06/2025

No. 23-20480

favorable decision.” Id. at 330 (cleaned up); see also Lujan, 504 U.S. at 560–
61.
360 Queen’s claimed injury is traceable to the Attorney General, who
enforces Section One, and its desired injunction would eliminate the threat
of enforcement. See supra note 8; see also Air Evac EMS, Inc. v. Tex., Dep’t of
Ins., Div. of Workers’ Comp., 851 F.3d 507, 513–14 (5th Cir. 2017) (noting
“significant overlap” between the redressability and traceability inquiries
and Ex parte Young’s application). 360 Queen therefore has standing to seek
an injunction against the Attorney General. Because one plaintiff with
standing for a given defendant is sufficient, we need not determine whether
the remaining two plaintiffs have standing to seek an injunction against the
Attorney General. See Murthy, 603 U.S. at 61.
4.
Extragrams LLC is a drag telegram company that provides drag
entertainment for celebrations, events, and parties, and hosts drag bingo.
Extragrams’ performances are primarily in Austin, Texas but it has also
performed in San Antonio, Dallas, Houston, Fredericksburg, Round Rock,
and Pflugerville.
This list does not include Abilene. Nor are any of these cities located
in Taylor or Montgomery County. Because Extragrams does not seek to
engage in arguably proscribed conduct in Abilene, Taylor County, or
Montgomery County, its claimed injury is not traceable to these appellants
or the district attorney appellants. Accordingly, Extragrams does not have
standing to seek an injunction against the remaining appellants.
5.
The final plaintiff, Brigitte Bandit, is a drag performer who lives in

15
Case: 23-20480 Document: 286-1 Page: 16 Date Filed: 11/06/2025

No. 23-20480

Austin, Texas, which is in Travis County. 10 Most of her performances are in
Travis County but she has performed in Houston, San Marcos, San Antonio,
and Dallas. As of September 9, 2023, Bandit had performances scheduled in
Denton and Abilene.
Bandit typically performs in bars and nightclubs that are restricted to
ages 21+, but she also performs at drag brunches (that are sometimes
restricted to ages 21+ and sometimes open to all ages) and at “all-ages shows
like drag story time.” Most of Bandit’s performances are not sexual, but she
does have “some sexual shows.” She testified that she would not perform
one of her sexual shows at an all-ages event, however.
Bandit changes her performance and appearance depending on the
audience. When performing for children, she “want[s] to appeal to
something that would be interesting to kids.” She has dressed as characters
from Toy Story and The Little Mermaid, and “like a big pink princess.” She
testified that, when performing before kids, her costumes are “typically
pretty covered,” presumably meaning modest.
Bandit does not have standing to seek an injunction against the
remaining appellants. Bandit has not performed, nor expressed an intent to
perform, in Montgomery County, so her claimed injury is not traceable to
Montgomery County or its district attorney. While Bandit testified that she
had a performance scheduled in Abilene, her testimony did not include any
information about this performance. Nor does the plaintiffs’ brief reference
Bandit’s intent to perform in Abilene. Bandit’s testimony stressed that her

_____________________
10
The district court granted this plaintiff permission to proceed under the
pseudonym “Brigitte Bandit.” See Woodlands Pride, 694 F. Supp. 3d at 829 n.3. “Bandit”
is a drag character who dresses as a female. Because the actual gender of this plaintiff is not
disclosed in the record, and “Bandit” portrays a female character, we refer to the character
“Bandit” as a female.

16
Case: 23-20480 Document: 286-1 Page: 17 Date Filed: 11/06/2025

No. 23-20480

sexual performances are restricted to 18+ or 21+ audiences, and no evidence
indicates that an Abilene performance would be any different. Bandit’s
claimed injury therefore is not traceable to the City of Abilene, Taylor
County, or the Taylor County district attorney either.
III.
Because the plaintiffs only have standing to assert their claims against
the Attorney General, and the Attorney General only has the authority to
enforce Section One, the sole remaining issue on appeal is whether the
plaintiffs have established that Section One, on its face, violates the First
Amendment.
The choice to litigate a facial challenge “comes at a cost”: facial chal-
lenges are “hard to win.” Moody v. NetChoice, LLC, 603 U.S. 707, 723
(2024). But this is a feature, not a bug. “Claims of facial invalidity often rest
on speculation about the law’s coverage and its future enforcement.” Id.
(internal quotation marks and citation omitted). Such claims also “threaten
to short circuit the democratic process by preventing duly enacted laws from
being implemented in constitutional ways.” Id. (internal quotation marks and
citation omitted). The Moody framework for facial free speech challenges
safeguards the democratic will and states’ interests while still “provid[ing]
breathing room for free expression.” Id. (cleaned up).
To determine if a law, on its face, violates the Free Speech Clause of
the First Amendment, we must ask whether “a substantial number of the
law’s applications are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep.” Id. (alterations adopted) (quoting Ams. for
Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021)). This inquiry begins with
an assessment of the law’s scope: “What activities, by what actors,” does the
law “prohibit or otherwise regulate?” Id. at 724. We then determine which
of the law’s applications violate the First Amendment. Id. at 725. And finally,

17
Case: 23-20480 Document: 286-1 Page: 18 Date Filed: 11/06/2025

No. 23-20480

we take the unconstitutional applications and “measure them against the
rest.” Id. The law is not facially invalid unless its “unconstitutional
applications substantially outweigh its constitutional ones.” Id. at 724.
The district court did not conduct this analysis, nor did the parties
brief the proper standard or adequately develop the record. 11 Consequently,
we are unequipped to undertake this task in the first instance, and remand for
the district court to do so. See Ficher v. Bickham, 70 F.4th 257, 260 (5th Cir.
2023) (“[W]e are a court of review, not first view.”).
* * *
We VACATE the injunction against the appellants and REMAND.
On remand, the district court is instructed to (1) dismiss the claims against
Brett Ligon, James Hicks, Montgomery County, Taylor County, and the City
of Abilene; and (2) reconsider the plaintiffs’ facial challenge to Section One
of S.B. 12 under the Moody framework. The pending motion for stay pending
appeal is denied as moot.

_____________________
11
To be fair, the Supreme Court decided Moody after the parties briefed this appeal,
and the Attorney General promptly filed a Rule 28(j) letter to notify us of its relevance. And
while Moody espoused existing law, that existing law had frequently been overlooked. See
Moody, 603 U.S. at 743–45 (vacating judgments from this court and the Eleventh Circuit
because neither court applied the proper standard for facial free speech challenges).

18
Case: 23-20480 Document: 286-1 Page: 19 Date Filed: 11/06/2025

No. 23-20480

James L. Dennis, Circuit Judge, concurring in the judgment in part and
dissenting in part:
I concur in the judgment that (1) 360 Queen has standing to sue the
Attorney General; (2) Woodlands Pride and Abilene Pride lack standing to
sue Montgomery and Taylor Counties and the claims against those
Defendants should be dismissed without prejudice; (3) sovereign immunity
does not bar Plaintiffs’ claims against the Attorney General; and (4) remand
is appropriate for the district court to reconsider Plaintiffs’ facial challenge
under Moody v. NetChoice, LLC, 603 U.S. 707 (2024). But in concluding that
all other Plaintiffs do not intend to engage in conduct arguably proscribed by
Senate Bill 12, the majority misapprehends the governing pre-enforcement
standing principles, disregards unrebutted testimony and record evidence,
and turns a blind eye to the Texas Legislature’s avowed purpose: a statewide
“drag ban.” In place of meaningful review, the opinion offers a strained and
wooden account of injury and traceability that ignores the statute’s text and
the practical realities of its enforcement. Worse still, the majority intimates
in passing that it harbors “genuine doubt” whether Plaintiffs’ drag
performances are protected First Amendment expression. That gratuitous
dictum runs headlong into settled First Amendment jurisprudence and
threatens to mislead on remand. Accordingly, I concur in the judgment in
part and dissent in part.
I
S.B. 12 traces its origins to late 2022, when Texas lawmakers
expressed outrage over reports of a private “drag” 1 performance at a Plano,

_____________________
1
“Drag” is a theatrical performance in which a performer overdramatizes a
character or gender. The performer typically dresses as a celebrity or fictional persona—
often, though not always, of the opposite sex or gender—and uses costumes, wigs, makeup,
and other accessories to exaggerate their physical characteristics. These accessories may

19
Case: 23-20480 Document: 286-1 Page: 20 Date Filed: 11/06/2025

No. 23-20480

Texas restaurant with minors among the audience. Shortly thereafter,
Lieutenant Governor Dan Patrick identified S.B. 12 as a legislative priority,
characterizing it as a measure to prohibit children’s exposure to drag shows.
When Senator Bryan Hughes introduced S.B. 12 in March 2023, he
described it as prohibiting “sexually explicit performances like drag shows.”
Following swift legislative approval, both Governor Greg Abbott and
Lieutenant Governor Patrick publicly celebrated the law as a ban on drag
performances in public spaces and in the presence of minors.
S.B. 12 prohibits “sexually oriented performance[s]” from occurring
in the “presence of an individual younger than 18 years of age” through three
main enforcement mechanisms: (1) civil penalties on those who control
commercial enterprises; (2) authorization for counties and municipalities to
regulate and prohibit such performances; and (3) criminal penalties. These
substantive provisions of S.B. 12 appear across three sections.
Section One establishes a civil penalty for any person who “controls a
premises of a commercial enterprise” that “allow[s] a sexually oriented
performance to be presented on the premises in the presence of an individual
younger than 18 years of age.” Tex. Health & Safety Code
§ 769.002(a). Section One is enforced by the Texas Attorney General who
may bring an action to recover a civil penalty of up to $10,000 for each
violation and obtain a temporary or permanent injunction to restrain
violations. Id. § 769.002(b)–(c).

_____________________
include prosthetics worn under their clothing, such as “packers” to simulate male anatomy
or “breastplates” to appear female. Performances often incorporate singing, dancing,
comedy, and physical interactions with audience members. Drag shows are held in a variety
of settings, including weddings, corporate events, holiday parties, and birthday
celebrations.

20
Case: 23-20480 Document: 286-1 Page: 21 Date Filed: 11/06/2025

No. 23-20480

Section Two prohibits Texas municipalities and counties from
authorizing sexually oriented performances on either (1) public property, or
(2) in the presence of an individual younger than 18 years of age. Tex. Loc.
Gov’t Code § 243.0031(c). A municipality or county may, subject to the
above prohibition, regulate sexually oriented performances as the
municipality or county deems necessary to promote the public health, safety,
or welfare. Id. § 243.0031(b). Municipalities and counties retain broad
authority to license, tax, suppress, prevent, or otherwise regulate theatrical
or other exhibitions, shows, or amusements. Id. § 243.0031(d)
Section Three creates a criminal offense for engaging in a sexually
oriented performance, regardless of whether compensation is expected or
received, if the performance (1) occurs on public property at a time, in a
place, and in a manner that could reasonably be expected to be viewed by a
child, or (2) takes place in the presence of an individual younger than 18 years
of age. Tex. Penal Code § 43.28(b). A violation constitutes a Class A
misdemeanor that is punishable by up to one year in jail, a fine of up to
$4,000, or both. Id. §§ 43.28(c), 12.21.
Section Three defines “sexually oriented performance” used across
S.B. 12’s substantive provisions as a “visual performance” that (A) features
(i) a performer who is “nude” or (ii) a performer who engages in “sexual
conduct,” and that (B) “appeals to the prurient interest in sex.” Id.
§ 43.28(a)(2). The definition of “nude” is borrowed from § 102.051(1)(A)–
(B) of the Texas Business and Commerce Code to mean either (A) “entirely
unclothed” or (B) “clothed in a manner that leaves uncovered or visible
through less than fully opaque clothing any portion of the breasts below the
top of the areola of the breasts, if the person is female, or any portion of the
genitals or buttocks.”

21
Case: 23-20480 Document: 286-1 Page: 22 Date Filed: 11/06/2025

No. 23-20480

Section Three then defines five categories of “sexual conduct” to
include:
(A) The exhibition or representation, actual or simulated, of
sexual acts, including vaginal sex, anal sex, and
masturbation;
(B) The exhibition or representation, actual or simulated, of
male or female genitals in a lewd state, including a state of
sexual stimulation or arousal;
(C) The exhibition of a device designed and marketed as useful
primarily for the sexual stimulation of male or female
genitals;
(D) Actual contact or simulated contact occurring between
one person and the buttocks, breast, or any part of the
genitals of another person; or
(E) The exhibition of sexual gesticulations using accessories or
prosthetics that exaggerate male or female sexual
characteristics.
Id. § 43.28(a)(1)(A)–(E). Several words and phrases are left undefined by
S.B. 12 and Texas law. For example, no Texas law defines, inter alia,
“lewd,” “performer,” “visual performance,” or “prurient interest in sex.”
See, e.g., id. § 43.28(a)(1)–(2).
B
Shortly before S.B. 12 took effect, Plaintiffs brought a pre-
enforcement challenge through 42 U.S.C. § 1983 alleging the law facially
violated the First and Fourteenth Amendments and seeking declaratory and
injunctive relief. Plaintiffs are Brigitte Bandit, 360 Queen Entertainment
LLC, Extragrams, LLC, The Woodlands Pride, Inc., and Abilene Pride
Alliance.

22
Case: 23-20480 Document: 286-1 Page: 23 Date Filed: 11/06/2025

No. 23-20480

Brigitte Bandit, a pseudonym, resides in Travis County, Texas where
she hosts, produces, and performs in drag shows as a full-time profession.
Bandit performs in a variety of venues including restaurants, bars, private
residences, and public parks. 360 Queen Entertainment LLC is a drag
production company in Bexar County, Texas owned by Richard Montez, Jr.
360 Queen produces drag performances exclusively for a restaurant in San
Antonio, Texas owned by Montez’s father. Extragrams, LLC is a drag
production and entertainment company in Travis County that offers drag
entertainment for various events including bingo, parties, weddings, and
corporate and holiday events. The Woodlands Pride, Inc. is a nonprofit
LGBTQ+ community organization in The Woodlands Township in
Montgomery County, Texas. Woodlands Pride organizes a free yearly
festival in a Montgomery County public park, which includes drag
performances, and is attended by thousands of patrons and hundreds of
exhibitors to support and highlight the LGBTQ+ community. Abilene Pride
Alliance is also a nonprofit LGBTQ+ organization in the City of Abilene in
Taylor County, Texas. Abilene Pride provides meeting spaces for social
support groups and holds community-based and fundraising events. These
events occur on public and private property and often feature drag
performers.
Each Plaintiff sued Kenneth Warren Paxton in his official capacity as
the Attorney General for the State of Texas, but named different cities,
counties, or district attorneys also as defendants. Bandit and Extragrams
asserted claims against Travis County District Attorney Delia Garza; 360
Queen asserted claims against Bexar County District Attorney Joe D.
Gonzales; Woodlands Pride asserted claims against The Woodlands
Township, Montgomery County, and Montgomery County District
Attorney Brett Ligon; and Abilene Pride asserted claims against the City of
Abilene, Taylor County, and Taylor County District Attorney James Hicks.

23
Case: 23-20480 Document: 286-1 Page: 24 Date Filed: 11/06/2025

No. 23-20480

Following a two-day bench trial, the district court entered a
permanent injunction against S.B. 12’s enforcement, concluding that
Plaintiffs had standing to seek injunctive relief against each Defendant and
that the law facially violates the First Amendment. This appeal followed. 2
II
“Article III standing requires a plaintiff to show: (1) an injury in fact
(2) that is fairly traceable to the actions of the defendant and (3) that likely
will be redressed by a favorable decision.” Cibolo Waste, Inc. v. City of San
Antonio, 718 F.3d 469, 473 (5th Cir. 2013) (quotations and citation omitted).
In the majority’s view, Plaintiffs’ claims—save for 360 Queen’s against the
Attorney General—meet their end at Article III’s injury-in-fact prong. That
result rests on a cramped view of pre-enforcement injury, a selective view of
the record, and an unduly narrow construction of S.B. 12’s sweeping text
and enforcement scheme.
A
In the context of a pre-enforcement First Amendment challenge, the
chilling of speech—whether by self-censorship or the reasonable fear of
official sanction—constitutes an injury sufficient to confer Article III
standing. Turtle Island Foods, S.P.C. v. Strain, 65 F.4th 211, 215 (5th Cir.
2023) (quoting Barilla v. City of Houston, 13 F.4th 427, 431 (5th Cir. 2021)).
A plaintiff alleging such an injury must demonstrate (1) an intention to engage
in conduct that is arguably protected by the Constitution, (2) that the conduct
is at least arguably proscribed by the challenged statute, and (3) that there
exists a credible threat of prosecution under that statute. Id. at 215–16 (citing
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014)). We must assume
_____________________
2
Travis County District Attorney Delia Garza and Bexar County District Attorney
Joe D. Gonzales did not appeal.

24
Case: 23-20480 Document: 286-1 Page: 25 Date Filed: 11/06/2025

No. 23-20480

at this stage of the analysis that the conduct at issue—Plaintiffs’ drag
performances—falls within the ambit of protected First Amendment
expression. Young Conservatives of Tex. Found. v. Smatresk, 73 F.4th 304, 309
(5th Cir. 2023). So, this dispute concerns the second and third elements.
1. Arguably Proscribed
To satisfy the arguably proscribed standard, Plaintiffs need only show
that their interpretation of S.B. 12 is “arguable,” not that it is “the best
interpretation” of the statutory text. Turtle Island Foods, 65 F.4th at 218
(emphasis in original). Contrary to the majority’s conclusion, Plaintiffs have
shown that their drag performances arguably fall within S.B. 12’s definition
of “sexually oriented performance”—i.e., a visual performance that features
either nudity or at least one of five categories of “sexual conduct” that
“appeal[s] to the prurient interest in sex”—and those performances will
arguably occur in the presence of minors. Tex. Penal Code
§ 43.28(a)(2).
I begin with what the majority ignores: S.B. 12’s legislative history.
While S.B. 12 does not on its face purport to ban “drag performances” by
name, even a cursory review of the law’s legislative history reveals several
indicia that this was undoubtedly the legislature’s intent. 3 Consider what
prompted lawmakers to introduce S.B. 12: a private drag performance in
Plano, Texas, during which a performer allegedly lifted her skirt and danced

_____________________
3
Legislative history is a valid inquiry for the purposes of standing. See United States
v. One Parcel of Real Prop., 831 F.2d 566, 567 (5th Cir. 1987) (relying on legislative history
to determine statute’s scope for purposes of standing). And Texas law permits courts to
“consider legislative history in construing a statute” even where that statute “is not
ambiguous.” City of Rockwall v. Hughes, 246 S.W.3d 621, 626 n.6 (Tex. 2008) (citing Tex
Gov’t Code § 311.023(3)).

25
Case: 23-20480 Document: 286-1 Page: 26 Date Filed: 11/06/2025

No. 23-20480

suggestively before an audience that included minors. 4 Senator Hughes, the
bill’s author, cited this isolated anecdote to justify a sweeping legislative
conclusion, namely that “sexually oriented performances sometimes occur
in venues generally accessible to the public, including children.” 5
From this premise, state officials characterized S.B. 12 as a targeted
response to drag performances. Lieutenant Governor Patrick designated the
legislation a priority and avowed its express purpose as “Banning Children’s
Exposure to Drag Shows.” In presenting the bill to the State Affairs
Committee, Senator Hughes likewise warned of a perceived risk that children
were being exposed to “sexually explicit performances like drag shows.”
S.B. 12’s legislative sponsors in the Texas House of Representatives
promoted the statute as a means of “protecting children from explicit, hyper-
sexualized drag performances in Texas,” “restricting sexually oriented
performances also known as ‘drag shows’ in the presence of children,” and
“protect[ing] a child’s innocence” by banning such events. Governor Abbott
affirmed this understanding when he announced the bill’s signing: “Texas
Governor Signs Law Banning Drag Performances in Public. That’s right.”
The legislative record leaves little doubt that S.B. 12 was crafted with the
specific aim of restricting drag performances.

_____________________
4
Bryan Hughes, Bill Analysis: C.S.S.B. 12, 88th Leg., R.S., at 1
(2023), https://capitol.texas.gov/tlodocs/88R/analysis/pdf/SB00012H.pdf [https://per-
ma.cc/CSR4-MLVU]; Mark Lungariello, Video of Drag Queen Gyrating in Front of Child
has Texas Pols Pushing for Legislative Action, N.Y. Post (Oct. 18, 2022),
https://nypost.com/2022/10/18/video-of-drag-queen-gyrating-next-to-child-sparks-bac-
klash/ [https://perma.cc/D2R2-9P8Z].
5
Hughes, supra note 4 (“In cities around Texas, sexually oriented performances
sometimes occur in venues generally accessible to the public, including children. For
instance, on October 18, 2022, the New York Post reported an all ages lunch at the Ebb &
Flow restaurant in Plano, Texas.”).

26
Case: 23-20480 Document: 286-1 Page: 27 Date Filed: 11/06/2025

No. 23-20480

So, it should come as no surprise that the statute’s operative language
“arguably” reaches the very conduct lawmakers intended to stymie. To
begin, extensive trial testimony demonstrates that each Plaintiff either
engages in or produces performances that arguably fall within the statute’s
definition of “sexual conduct” or nudity. Bandit described the use of
elaborate costuming in her performances, including corsets, high heels, wigs,
prosthetic breastplates, false eyelashes, and makeup. In her words, these
features are intended to “exaggerate” her “female characteristics” and are
integral to her expressive presentation. Bandit regularly incorporates into her
performances choreography that includes hip thrusts, breast touching, and
stylized body contact with audience members—for instance, the widely
accepted custom of having audience members place tips into her prosthetic
chest. Her use of prosthetics and sexually suggestive bodily movements
arguably implicates the statutory prohibition against “the exhibition of sexual
gesticulations using accessories or prosthetics that exaggerate male or female
sexual characteristics.” Tex. Penal Code § 43.28(a)(1)(E).
Representatives of 360 Queen and Extragrams offered similar
testimony. Both entities produce drag performances in which artists
frequently wear prosthetic breastplates, padded undergarments, and packers
to simulate or accentuate secondary sex characteristics. While wearing these
accessories, performers engage in highly stylized dance routines that involve
twerking, 6 body rolls, splits, and other gestures that one 360 Queen
representative described as “pulsing [their] chest in front of people’s faces.”
These expressive elements—when viewed in combination—arguably fall
within the statute’s prohibition on gesticulations that utilize prosthetics to

_____________________
6
Twerking, Merriam-Webster, https://perma.cc/W2S7-SKQD (defining
“twerking” as “sexually suggestive dancing characterized by rapid, repeated hip thrusts
and shaking of the buttocks especially while squatting”).

27
Case: 23-20480 Document: 286-1 Page: 28 Date Filed: 11/06/2025

No. 23-20480

exaggerate sexual characteristics. Tex. Penal Code § 43.28(a)(1)(E).
Extragrams’s director also reported that wardrobe malfunctions “happen[]
often” during performances, such as the accidental exposure of cleavage or
buttocks during energetic choreography (e.g., jumping into a split or leotards
riding up), which arguably constitutes nudity. 7 Id. § 43.28(a)(2)(A)(i); Tex.
Bus. & Com. Code § 102.051(1)(B).
The same is true of drag performances hosted by Woodlands Pride
and Abilene Pride. The president of Woodlands Pride testified that
performers at its annual outdoor festival routinely appear in gendered attire
including wigs, stylized makeup, and prosthetic breastplates. Their
choreography often includes movements such as hip thrusts, body rolls, and
other exaggerated gestures that accentuate sex characteristics. Abilene
Pride’s representatives offered similar testimony. At its events, drag
performers often wear packers or breastplates and padded undergarments to
shape or accentuate the appearance of sexual characteristics. These
performers also engage in stylized choreography that, in the view of the
organization’s director, may at times carry sexual overtones or be perceived
as suggestive by members of the public. When viewed in context, the
combination of simulated anatomy, expressive movement, and costuming
arguably amount to “the exhibition of sexual gesticulations using accessories

_____________________
7
The Attorney General conceded at trial that such wardrobe malfunctions would
expose Extragrams, Woodlands Pride, and Abilene Pride to liability under S.B. 12. See
Trial Tr. Day 2, ECF-78, 80:18-81:5 (“[O]ne of the responses to that was ‘Well, one of our
performers might have a wardrobe malfunction.’ I don’t really understand what they think
that gets them. . . . If they’re wearing a costume that might result in exposure of their private
parts, they should not be performing in front of children wearing that costume. You can’t
just recklessly wear something that might expose yourself and then have a get out of jail
free card and say, ‘Oh, it was a wardrobe malfunction.’”).

28
Case: 23-20480 Document: 286-1 Page: 29 Date Filed: 11/06/2025

No. 23-20480

or prosthetics that exaggerate male or female sexual characteristics.” Tex.
Penal Code § 43.28(a)(1)(E).
Plaintiffs also have demonstrated that their performances arguably
satisfy the second component of a “sexually oriented performance” under
S.B. 12: that the conduct “appeal[s] to the prurient interest in sex.” Id.
§ 43.28(a)(2)(B). The statute itself offers no definition of this phrase, which
the Attorney General concedes. 8 He and the majority instead turn to
obscenity jurisprudence, invoking language from Roth v. United States, 354
U.S. 476, 487 & n.20 (1957), and Ashcroft v. ACLU, 535 U.S. 564, 579 (2002),
to suggest that the standard is satisfied by material that is “in some sense
erotic” or has a “tendency to excite lustful thoughts.” See ante, at 3 & n.2.
Even accepting that construction for present purposes, common sense
and the record demonstrate that Plaintiffs’ performances arguably meet the
standard. S.B. 12’s statutory framework remains notably open-ended; the
law does not require proof of specific intent to arouse, nor does it identify any
objective criteria for who determines whether a performance is erotic or how
that judgment is to be made. In that interpretive vacuum, it is easy to see how
“sexual conduct”—here, Plaintiffs’ performances involving simulated or
exaggerated sexual characteristics combined with stylized or suggestive
physical gestures—is arguably “in some sense erotic” or has the potential to
“excite lustful thoughts.” Roth, 354 U.S. at 487 & n.20; Ashcroft, 535 U.S. at
579. The record supports this inference. Multiple Plaintiffs testified to
receiving audience complaints or facing law enforcement responses from
_____________________
8
Although “prurient interest in sex” suggests the Texas Legislature may have
intended to invoke the Supreme Court’s formulation in Miller v. California, 413 U.S. 15, 24
(1973), Senator Hughes rejected that interpretation, and the Act omits the other two
elements of the Miller test. See Hearing on S.B. 12 before the Texas Senate, 88th Leg., R.S. at
7:20–7:35 (April 4, 2023) (Statement of Senator Bryan Hughes), https://perma.cc/9W2D-
ULUY; Tex. Penal Code § 43.28(a)(2).

29
Case: 23-20480 Document: 286-1 Page: 30 Date Filed: 11/06/2025

No. 23-20480

individuals who perceived their performances as sexual in nature. Others
explained that the phrase “prurient interest” was itself subjective and
indeterminate—often tied to a viewer’s own “independent moral code,” or
whatever that observer “thinks and feels.”
The Attorney General resists this conclusion by arguing that Plaintiffs
have repeatedly disclaimed any intention of conveying sexually explicit
messages. But his argument misconstrues the present inquiry. The question
is not whether Plaintiffs seek to violate the law or whether they subjectively
view their performances as erotic; rather, it is whether those performances
could arguably be interpreted by a factfinder as falling within the statute’s
scope. See Turtle Island Foods, 65 F.4th at 217 (explaining that a plaintiff
“need not establish that [they] openly intend[] to violate the law”
(alterations in original) (quoting Driehaus, 573 U.S. at 163 (2014)); see also
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 301 (1979)
(holding a case justiciable even though the plaintiffs disavowed any intent to
“propagate untruths”). It is entirely plausible that Plaintiffs’ gendered
expressions, costuming, prosthetics, and choreography could be viewed by
factfinders and officials empowered to enforce S.B. 12 as appealing to the
prurient interest in sex.
Finally, Plaintiffs’ performances arguably occur “in the presence of
an individual younger than 18 years of age” or “in a manner that could
reasonably be expected to be viewed by a child.” Tex. Penal Code
§ 43.28(b)(1)–(2); Tex. Local Gov’t Code § 243.0031(c)(1)–(2). This
element is satisfied in at least two distinct settings reflected in the record:
first, those performances expressly open to all ages, where drag prosthetics,
choreography, or wardrobe mishaps could expose performers to liability
regardless of intent; and second, those performances tailored for adult
audiences where minors may still be present or capable of observing the
event.

30
Case: 23-20480 Document: 286-1 Page: 31 Date Filed: 11/06/2025

No. 23-20480

Extragrams, Woodlands Pride, and Abilene Pride fall within the first
category. Each regularly organizes public-facing performances, including
festivals, community gatherings, and private events, where children are
either expressly invited or routinely present. Extragrams’s drag entertainers
perform at a variety of private and public gatherings including parties,
weddings, holiday events, and bingo nights where children may be in
attendance. Woodlands Pride and Abilene Pride hosts events—most notably,
large-scale festivals—on public property where minor attendees are not only
permitted but welcomed. Because children are routinely present at these
events, the performances will occur “in the presence of” minors. Tex.
Penal Code § 43.28(b)(1); Tex. Local Gov’t Code
§ 243.0031(c)(2). And even if Plaintiffs confirmed that no minors were in the
audience, the accessible nature of these public venues makes it at least
arguable that the performances occur “in a manner that could reasonably be
expected to be viewed by a child.” Tex. Penal Code § 43.28(b)(1).
Bandit and 360 Queen fall into the second, adult-oriented category.
Bandit testified that she cannot ensure all audience members at her adult-
oriented performances are over the age of eighteen. Admission to her
performances is typically controlled by the hosting venue, which may admit
minors with parental consent. And Bandit recalled instances where parents
brought their seventeen-year-old children to her shows. She also described
performing at venues with outdoor stages or transparent façades, where her
shows could be seen from adjacent sidewalks, nearby hotels or apartments,
or public thoroughfares. Similarly, 360 Queen’s drag performances take
place on a restaurant patio, which is separated from the indoor dining room
only by a long wall made entirely of windows. While access to the patio show
is ticketed and generally restricted to adults, minors are permitted with
parental approval. Moreover, the patio is visible to patrons dining inside the
restaurant, which is separated only by a wall of windows. The patio itself is

31
Case: 23-20480 Document: 286-1 Page: 32 Date Filed: 11/06/2025

No. 23-20480

bordered on three sides by a parking lot, and nearby commercial
establishments also have a clear line of sight into the venue. Although Bandit
and 360 Queen’s events are intended for adult audiences, these structural
features make it likely that a minor will observe a performance even without
formal admission. In such circumstances, it is at least arguable that the
performances occur in a manner reasonably expected to be viewed by a child.
The Attorney General counters that a minor’s unintentional or
incidental exposure is insufficient to trigger liability under S.B. 12, positing
that “presence” requires both physical proximity and conscious awareness.
In other words, a minor must be knowingly situated in the audience—not a
passerby, remote observer, or otherwise unaware onlooker. But the statute
provides no definition of “presence,” and Plaintiffs offer a competing
reading grounded in alternative dictionary definitions; namely, “[t]he
quality, state, or condition of being in a particular time and place,” with no
requirement of perception or attentiveness. See Presence, Black’s Law
Dictionary (11th ed. 2019). 9 On this textual ambiguity alone, it is at least
arguable that S.B. 12 applies when a performance is observable by a minor
from an adjacent sidewalk, parking lot, restaurant interior, or public
thoroughfare.
I also would reject the Attorney General’s claim that the statute
implicitly incorporates a scienter requirement—specifically, criminal
negligence—such that performers would not be liable under Sections One or

_____________________
9
When interpreting an undefined term in a Texas statute, we look to its ordinary
meaning informed by dictionary definitions and relevant legal usage. Malouf v. State, 694
S.W.3d 712, 718 (Tex. 2024); Tex. State Bd. of Exam’rs of Marriage & Fam. Therapists v.
Tex. Med. Ass’n, 511 S.W.3d 28, 34–35 (Tex. 2017); see also Antonin Scalia & Bryan A.
Garner, A Note on the Use of Dictionaries, 16 Green Bag 2d 419, 423, 428 (2013) (noting
that Black’s Law Dictionary is among “the most useful and authoritative for the
English language generally and for law”).

32
Case: 23-20480 Document: 286-1 Page: 33 Date Filed: 11/06/2025

No. 23-20480

Three absent a failure to perceive a substantial and unjustifiable risk. See
Tex. Penal Code § 6.03(d). Section Three is silent with respect to mens
rea and under Texas law, such silence supports the presumption of strict
liability. See id. § 6.02(b); Aguirre v. State, 22 S.W.3d 463, 470 (Tex. Crim.
App. 1999) (“The typical strict liability statute is ‘empty’—it simply says
nothing about a mental state.”), as modified on denial of reh’g (Dec. 8, 1999). 10
The same is true of the civil penalty provision. As the Texas Supreme Court
has explained, where a civil penalty statute “makes no provision for
knowledge or intent,” it “does not include culpability as an element.” State
v. Houdaille Indus., Inc., 632 S.W.2d 723, 729 (Tex. 1982). Nothing in the
statutory text necessarily precludes strict criminal or civil liability where a
minor is present or capable of viewing the proscribed performances. That
includes settings where minors are admitted by parental choice, or where
performances are observable through glass façades, from public sidewalks, or
in other accessible spaces.
In sum, Plaintiffs’ testimony, credited by the district court and
consistent across each Plaintiff, amply establishes that their intended course
of conduct is arguably proscribed by S.B. 12. Their shows feature costuming,
choreography, and physical expression that plausibly constitute “sexual
conduct” or “nudity” that may be seen to “appeal to the prurient interest in
sex,” particularly under the statute’s ambiguous terms. These performances
also occur in settings where minors are arguably present or could reasonably
be expected to view them. This is sufficient to satisfy the “arguably

_____________________
10
Indeed, Aguirre noted a tradition in Texas criminal law of “finding statutes to
impose strict liability as to entire offenses affecting public health and safety, and as to the
element of a child’s age in statutes that protect children.” 22 S.W.3d at 475 (collecting
cases).

33
Case: 23-20480 Document: 286-1 Page: 34 Date Filed: 11/06/2025

No. 23-20480

proscribed” standard for pre-enforcement standing. See Turtle Island Foods,
65 F.4th at 217.
2. Credible Threat of Prosecution
Plaintiffs also have established a credible threat of prosecution under
S.B. 12. In the context of a pre-enforcement challenge to a law regulating
speech, we assume such a threat exists where the statute “facially restrict[s]
expressive activity by the class to which the plaintiff belongs,” unless the
government offers “compelling contrary evidence” to rebut that
presumption. Id. at 218 (alteration in original) (quoting Speech First, 979 F.3d
at 335). Plaintiffs here engage in protected First Amendment expression for
the purposes of standing and fall within the class of speakers S.B. 12 was
enacted to reach. Accordingly, the presumption of a credible enforcement
threat attaches, and the burden shifts to Defendants to rebut it with evidence
that is not merely speculative or conclusory, but “compelling.” Id.
The record contains no such rebuttal. Defendants point to the absence
of prior prosecutions or explicit statements of intent to apply the statute to
Plaintiffs. But Defendants refused to disavow an intention to enforce the
statute against Plaintiffs. In fact, counsel for Bexar County District Attorney
Joe D. Gonzales emphasized at trial that “no district attorney or prosecutor
in the state can basically disavow an intent to prosecute any criminal offense
in the state.” Even if Defendants had disavowed enforcement, that would not
suffice to defeat standing as the “lack[] [of] any intention to penalize the
intended conduct” is not compelling contrary evidence. Id. (quoting Speech
First, 979 F.3d at 336). Nor does the fact that the statute has not yet been
enforced foreclose a finding of standing. As we have long held, “[t]hat the
statute has not been enforced and that there is no certainty that it will be does
not establish the lack of a case or controversy.” KVUE, Inc. v. Moore, 709
F.2d 922, 930 (5th Cir. 1983). Because S.B. 12 arguably targets the

34
Case: 23-20480 Document: 286-1 Page: 35 Date Filed: 11/06/2025

No. 23-20480

expressive conduct in which Plaintiffs routinely engage, and because no
Defendant has provided compelling evidence to the contrary, the threat of
enforcement is credible.
B
I turn next to the causation prong of standing: whether Plaintiffs have
shown that their First Amendment injuries—manifested in chilled speech
and self-censorship—are fairly traceable to the enforcement authority of the
Defendants named in this suit.
Beginning with the Attorney General, his enforcement authority
under Section One of S.B. 12 is limited to “a person who controls the
premises of a commercial enterprise.” Tex. Health & Safety Code
§ 769.002(a)–(c) (emphasis added). He contends that no Plaintiff exercises
such control. But as with his other objections to standing, this argument can
be distilled to a disagreement over the meaning of statutory language, and we
ask only whether Plaintiffs’ interpretation of “controls” is arguably correct.
Turtle Island Foods, 65 F.4th at 218. “Control” commonly means to
“exercise power or influence over,” or to “regulate or govern.” Control,
Black’s Law Dictionary (11th ed. 2019); see also In Int. of H.S., 550
S.W.3d 151, 157 (Tex. 2018).
The Attorney General urges a narrow interpretation that equates
“controls” with legal ownership or proprietorship of a venue. Like the
majority, I view this reading as arguably too narrow. Section One proscribes
“allow[ing]” a minor to attend a performance on commercial premises and
predicates liability on those who “control[]” the premises. Tex. Health
& Safety Code § 769.002(a). This statutory structure suggests
“controls” and the transitive verb “allow” must be read together. Cf. Cruz
v. Abbott, 849 F.3d 594, 599 (5th Cir. 2017). The plain meaning of “allow” is
“[t]o give consent to” or “to approve.” Allow, Black’s Law

35
Case: 23-20480 Document: 286-1 Page: 36 Date Filed: 11/06/2025

No. 23-20480

Dictionary (12th ed. 2024). It follows that a person arguably controls the
premises of a commercial enterprise if they “regulate” that premises such
that it gives “consent” or otherwise “approve[s]” of a minor’s attendance
to a sexually oriented performance. Id. The meaning of “controls,” then, is
not necessarily limited to only owners or proprietors of a business. This
reading finds further support in the legislature’s decision not to use more
precise terms such as “owner” or “operator.” See Seals v. State, 187 S.W.3d
417, 421 (Tex. Crim. App. 2005) (en banc).
On this reading, 360 Queen arguably exercises control over the
premises of a commercial enterprise during its performances. The
company’s owner testified that it books drag artists to perform on the patio
of a local restaurant and that, under a written agreement with the restaurant,
it enjoys exclusive use of the performance area during the show. 360 Queen
manages ticket sales, staff placement, and audience admission, while the
restaurant restricts its role to food and beverage service. These facts support
that 360 Queen plausibly “controls” the premises within the meaning of the
statute, and that its First Amendment injury is therefore fairly traceable to
the Attorney General’s enforcement authority under Section One. 11
Woodlands Pride and Abilene Pride also have shown that their injuries
are fairly traceable to the threat of criminal prosecution by Montgomery
County District Attorney Brett Ligon and Taylor County District Attorney
James Hicks, respectively. Liability under Section Three extends to any
“person” who “engages in a sexually oriented performance” in the presence
of a minor. Tex. Penal Code § 43.28(b). The Texas Penal Code defines

_____________________
11
Because I agree that 360 Queen has standing to enjoin the Attorney General’s
enforcement of Section One, the remaining Plaintiffs also have standing to press their First
Amendment claims against the Attorney General. Horne v. Flores, 557 U.S. 433, 446–47
(2009); Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189 n.7 (2008).

36
Case: 23-20480 Document: 286-1 Page: 37 Date Filed: 11/06/2025

No. 23-20480

“person” to include not only individuals but also corporations, limited
liability companies, and other legal entities. Id. § 1.07(38); see also Vaughan &
Sons, Inc. v. State, 737 S.W.2d 805, 811 (Tex. Crim. App. 1987) (en banc).
The term “engage,” though undefined, carries its ordinary meaning: “[t]o
employ or involve oneself,” “to take part in,” or “to embark on.” Engage,
Black’s Law Dictionary (12th ed. 2024).
Both organizations operate as nonprofit corporations and routinely
sponsor public drag performances arguably proscribed by S.B. 12 within
Montgomery and Taylor Counties. Their organizational role in producing
and facilitating these events places them within the class of “persons” who
may be held liable under Section Three. Tex. Penal Code §§ 1.07(38),
7.02(a)(2); see also Vaughan & Sons, 737 S.W.2d at 811. Moreover, Texas law
imposes criminal liability on entities that aid, direct, or encourage the
commission of an offense. See Tex. Penal Code § 7.02(a)(2). Woodlands
Pride and Abilene Pride, then, plausibly faces a dual risk of criminal liability
under Section Three traceable to Ligon and Hicks’s enforcement of that
provision. Woodlands Pride also explained that its expressive mission
depends on the participation of performers who now fear prosecution. That
fear has already caused disruptions to the organization’s programming.
Abilene Pride similarly expressed that it has considered abandoning drag
altogether “to keep [its performers] as safe as [possible].” These injuries are
no less traceable—they are the predictable result of the threat of enforcement
by the district attorneys charged with applying Section Three and are thus
sufficient to support standing. See Dep’t of Com. v. New York, 588 U.S. 752,
768 (2019). I thus part from the majority opinion’s conclusions here.
The showing of traceability, however, is more limited with respect to
the municipality and county Defendants charged with enforcing Section
Two: the City of Abilene, Taylor County, and Montgomery County.
Woodlands Pride and Abilene Pride contend their injuries are traceable to

37
Case: 23-20480 Document: 286-1 Page: 38 Date Filed: 11/06/2025

No. 23-20480

these Defendants by virtue of Section Two’s negative command, which
provides that municipalities and counties “may not authorize” a sexually
oriented performance on public property or in the presence of a minor. Tex.
Local Gov’t Code § 243.0031(c) (emphasis added). These Plaintiffs
allege that Section Two’s blanket prohibition has compelled them to alter or
forgo drag performances planned for public festivals and similar events,
thereby chilling their speech. The relevant inquiry, then, is whether these
municipal and county Defendants bear some connection to authorizing the
events in question. If they do, then Section Two imposes a legal obligation
that links their refusal or inability to authorize those events with the
constitutional injuries Plaintiffs allege.
That connection is plainly established with respect to Abilene Pride’s
claims against the City of Abilene. The organization hosts an annual pride
parade on city property that includes performances arguably proscribed by
S.B. 12. City approval is required before the event may proceed, 12 and
Abilene Pride credibly fears that, in light of Section Two, the City of Abilene
must revoke or deny the necessary permits. That concern has already led the
organization to adopt contingency measures, including the removal of a drag
float from its parade and the relocation of drag performances from its all-ages
festival to a private venue. These acts of self-censorship, compelled by the
City of Abilene’s statutory obligations, render Abilene Pride’s injuries fairly
traceable to the City’s enforcement of Section Two.
By contrast, neither Plaintiff identifies evidence sufficient to establish
a similar link to Taylor County or Montgomery County, so I join the
majority’s judgment as to these Defendants. Abilene Pride’s only asserted
connection to Taylor County involves a planned pride festival at the Taylor

_____________________
12
See Abilene, Tex., Code ch. 29, art. IX, § 29-162(a) (2013).

38
Case: 23-20480 Document: 286-1 Page: 39 Date Filed: 11/06/2025

No. 23-20480

County Expo Center. That facility is leased and operated by a nonprofit
organization, and while Taylor County owns the underlying property, the
City of Abilene—not the county—handles all permitting decisions related to
the event. There is no evidence that Taylor County exercises any authority
to approve or prohibit the event itself, nor is there any indication that it plays
a role in enforcing Section Two against Abilene Pride’s use of the venue.
Woodlands Pride’s situation is similar. It holds its annual pride
festival at Town Green Park, a public park owned and operated by The
Woodlands Township—a non-party special-purpose district within
Montgomery County. The Township owns the park, issues permits for
events hosted there, and exercises sole responsibility over its use. 13 At trial,
Woodlands Pride confirmed that the organization has never sought nor
required permission from Montgomery County to use the park for its festival.
On this record, there is no indication that Montgomery County plays any role
in the permitting process, nor any showing that it exercises the kind of
approval authority that would implicate Section Two. I thus agree with the
majority that Montgomery County should be dismissed without prejudice.
Woodlands Pride offers two additional grounds to support a traceable
injury to Montgomery County, but neither suffices on the present record.
First, the organization argues that Section Two endangers its ability to obtain
a temporary event permit to sell alcohol at its festivals, which it claims must
be approved by the county sheriff. That assertion, however, misapprehends
the relevant statutory framework. Under Texas law, the Texas Alcoholic
Beverage Commission—not county officials—has exclusive authority over

_____________________
13
See The Woodlands Township, Tex., Order 019-09 (Nov. 16, 2009) (amended
2023). Plaintiffs stipulated as to the dismissal of The Woodlands Township upon its
representation that it is “not a ‘municipality’ within the scope of the Texas Local
Government Code that Senate Bill 12 seeks to amend.”

39
Case: 23-20480 Document: 286-1 Page: 40 Date Filed: 11/06/2025

No. 23-20480

such permits. See Tex. Alco. Bev. Code §§ 11.31, 30.02. Even assuming
Montgomery County had some role in that process, Woodlands Pride
presented no evidence that the denial of an alcohol permit would interfere
with its ability to hold a public festival or that expressive activity depends on
such sales. Second, Woodlands Pride claims that its ability to obtain a festival
permit from The Woodlands Township is threatened by its reliance on a
county contract for off-duty officers to fulfill a required security plan. Yet
Woodlands Pride conceded that it contracts directly with off-duty officers,
not the county itself, and that Township regulations do not require security
to be provided by county law enforcement. Moreover, the organization
presented no evidence that its ability to proceed with its public events would
be meaningfully impaired absent that particular arrangement. This evidence
is insufficient to show that Woodlands Pride’s injury is fairly traceable to
Montgomery County’s obligations under Section Two.
At bottom, I would find that Woodlands Pride and Abilene Pride have
not demonstrated that their injuries are fairly traceable to any enforcement
authority exercised by Montgomery County or Taylor County under Section
Two of S.B. 12. I otherwise see no error in the district court’s determination
that Plaintiffs have standing to pursue their claims. 14

_____________________
14
I agree with the majority that sovereign immunity does not bar Plaintiffs’ claims
against the Attorney General, who is a proper Ex parte Young defendant given his specific
enforcement authority under Section One of S.B. 12. See City of Austin v. Paxton, 943 F.3d
993, 997 (5th Cir. 2019); Tex. All. for Retired Americans v. Scott, 28 F.4th 669, 672 (5th Cir.
2022). The same bottom line applies to the district attorney Defendants because they are
not protected by the Eleventh Amendment in the first place. District Attorneys Ligon and
Hicks are county officials rather than state officials. And as our court recently held, “‘Texas
district attorneys [are] not protected by the Eleventh Amendment’ precisely because they
are county officials, not state officials.” Nat’l Press Photographers Ass’n v. McCraw, 90 F.4th
770, 780 (5th Cir. 2024) (alteration in original) (quoting Hudson v. City of New Orleans, 174
F.3d 677, 682 (5th Cir. 1999)). Sovereign immunity does not bar this suit.

40
Case: 23-20480 Document: 286-1 Page: 41 Date Filed: 11/06/2025

No. 23-20480

III
The district court ruled that Plaintiffs’ performances constitute
protected expression and that S.B. 12 facially violates the First Amendment.
Since then, the Supreme Court decided Moody v. NetChoice, LLC, clarifying
the framework for First Amendment facial challenges. 603 U.S. 707, 724–26
(2024). In light of Moody, I agree with the majority that remand is appropriate
so the district court can apply the Court’s comparative inquiry across the
statute’s full range of applications. I am far less persuaded, however, that
vacating the injunction is necessary to accomplish that task; a limited remand
without vacatur would suffice and better preserves the status quo while the
court undertakes the analysis Moody now requires.
In any event, the majority’s vacatur does not disturb the portion of the
district court’s injunction barring Travis County Attorney Delia Garza and
Bexar County District Attorney Joe D. Gonzales from enforcing Section
Three of S.B. 12 because (1) neither appealed; (2) as to the district attorneys
who did appeal, the majority dismisses on standing and never reaches the
merits of injunctive relief; and (3) the majority expressly limits its analysis to
the Attorney General’s enforcement of Section One. See, e.g., United States
v. City of Miami, 664 F.2d 435, 445 (5th Cir. 1981) (en banc) (plurality op.)
(Rubin, J., concurring) (“[A]n appellant may not appeal on behalf of others
who have chosen not to intervene or to appeal.”); Tompkins v. Cyr, 202 F.3d
770, 786–87 (5th Cir. 2000) (vacating erroneous damages calculation only as
to “the losing defendants who have appealed” but declining to “vacate the
damage award against the non-appealing defendants” despite the error’s
effect on the common verdict); Wright & Miller’s Federal
Practice & Procedure § 3950.7 (5th ed. 2025) (“[O]ther parties who
have not joined in [an] initial notice of appeal must file their own notices of
appeal if they wish to attack all or a portion of the judgment below and to be

41
Case: 23-20480 Document: 286-1 Page: 42 Date Filed: 11/06/2025

No. 23-20480

relieved of the consequences thereof.”). The district court’s injunction
therefore remains operative as to those non-appealing Defendants.
* * *
Finally, the majority makes a passing remark that it harbors “genuine
doubt” whether Plaintiffs’ drag performances are protected by the First
Amendment. Ante, at 14 n.9. That aside is dictum, contrary to settled First
Amendment precedent, and it should not be read to constrain the district
court’s analysis on remand.
The First Amendment’s protection “does not end at the spoken or
written word,” Texas v. Johnson, 491 U.S. 397, 404 (1989), and it embraces
conduct “sufficiently imbued with elements of communication,” Spence v.
Washington, 418 U.S. 405, 409 (1974) (per curiam). Live performance, dance,
theater, satire, and costuming falls comfortably within that ambit. See, e.g.,
Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557–58 (1975). The Court has
repeatedly safeguarded a “wide array of conduct that can qualify as
expressive, including nude dancing, burning the American flag, flying an
upside-down American flag with a taped-on peace sign, wearing a military
uniform, wearing a black armband, conducting a silent sit-in, refusing to
salute the American flag, and flying a plain red flag.” Masterpiece Cakeshop,
Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617, 657 & n.1 (2018) (Thomas, J.,
concurring) (collecting cases). And under Hurley v. Irish-American Gay,
Lesbian & Bisexual Group of Boston, a “narrow, succinctly articulable message
is not a condition of constitutional protection.” 515 U.S. 557, 569 (1995); see
also Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011) (“[W]e have long
recognized that it is difficult to distinguish politics from entertainment, and
dangerous to try.”).
Drag—a costumed, choreographed, and frequently parodic
performance that speaks in the idiom of gender—plainly participates in that

42
Case: 23-20480 Document: 286-1 Page: 43 Date Filed: 11/06/2025

No. 23-20480

protected tradition. See Spectrum WT v. Wendler, 151 F.4th 714, 729 (5th Cir.
2025) (Southwick, J.) (“Because theatrical performances plainly involve
expressive conduct within the protection of the First Amendment, and
because we find the plaintiffs’ drag show is protected expression,
discrimination among such shows must pass strict scrutiny.”), reh’g en banc
granted, op. vacated, No. 23-10994, 2025 WL 3008019 (5th Cir. Oct. 27,
2025); HM Fla.-ORL, LLC v. Governor of Fla., 137 F.4th 1207, 1227 (11th Cir.
2025) (finding substantively identical Florida law aimed at restricting drag
shows and venues “reaches First-Amendment-protected speech, not just
unprotected obscenity”); Naples Pride, Inc. v. City of Naples, 2025 WL
1370174, at *10 (M.D. Fla. May 12, 2025) (collecting persuasive authorities
finding “that drag performances can be protected by the First
Amendment”); Luke A. Boso, Exclusionary Expressive Conduct, 66 Bos. L.
Rev. 295, 298 (2025) (“How could a . . . federal judge conclude that a
traditional lesbian, gay, bisexual, transgender, and queer (LGBTQ) form of
art, entertainment, and political resistance is not sufficiently expressive to
warrant First Amendment analysis?”); Mark Satta, Shantay Drag Stays:
Anti-Drag Laws Violate the First Amendment, 25 Geo. J. Gender & L. 95,
104 (2023) (“[D]rag performances are expressive conduct in virtue of being
artistic performances that express a variety of messages, similar to those the
Supreme Court has already recognized.”). The majority’s effort to collapse
an entire art form into a few salacious acts turns these principles on their
head.
Nor does the presence of sexual expression or purported goal of
protecting minors remove First Amendment protections. The Court has
insisted that “sex and obscenity are not synonymous.” Roth, 354 U.S. at 487.
Although obscenity—defined and cabined by Miller v. California, 413 U.S. 15
(1973)—may fall beyond the First Amendment’s scope, “sexual expression
which is indecent but not obscene is protected,” Sable Commc’ns of Cal., Inc.

43
Case: 23-20480 Document: 286-1 Page: 44 Date Filed: 11/06/2025

No. 23-20480

v. FCC, 492 U.S. 115, 126 (1989), and a state’s power to shield minors is
circumscribed by Ginsberg v. New York, 390 U.S. 629 (1968). Texas already
possesses those tools by prohibiting “obscene” performances and the
“exhibition” of “harmful material” to minors. Tex. Penal Code
§§ 43.23(c)(2), .24(b)(1). What it may not do—and what S.B. 12 does—is
discard Miller and Ginsberg’s guardrails and suppress protected
performances through undefined, sweeping terms like “prurient interest,” a
path that Roth’s author found unworkable. See Paris Adult Theatre I v. Slaton,
413 U.S. 49, 73 (1973) (Brennan, J., dissenting) (“I am convinced that the
approach initiated 16 years ago in Roth . . . cannot bring stability to this area
of the law without jeopardizing fundamental First Amendment values.”); see
also City of Houston v. Hill, 482 U.S. 451, 480 (1987) (Powell, J.,
concurring in part) (“[T]he ambiguous terms of this ordinance confe[r] on
[the state] a virtually unrestrained power to arrest and charge persons with a
violation. . . . The opportunity for abuse, especially where a statute has
received a virtually open-ended interpretation, is self-evident.” (internal
quotations and citation omitted)). The majority’s dictum invites precisely
that instability.
Accordingly, I respectfully concur in the judgment in part and dissent
in part.

44

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11198648. Public record. Not legal advice.