November 6, 2025, opinions

Posted on by tadbartlett

Designated for publication

  • The Woodlands Pride, Inc. v. Paxton, 23-20480, appeal from S.D. Tex.
    • Engelhardt, J. (Dennis, Southwick, Engelhardt) (oral argument), Dennis, J., dissenting in part; First Amendment, sovereign immunity, standing
    • Vacating injunction entered on First Amendment pre-enforcement challenge brought by drag performer and organizations against Texas law regulating “sexually oriented performances on public property and in the presence of minors”; and remanding for further proceedings.
    • Texas Senate Bill 12 (“S.B. 12”) regulates “sexually oriented performances” on public property and in the presence of minors. The statute defines such performances as visual displays featuring nudity or sexual conduct that appeal to a prurient interest in sex. “Sexual conduct” under the law includes simulated sexual acts, exposure or depiction of genitals in a lewd state, and sexual gesticulations using exaggerated prosthetics. S.B. 12 restricts these performances in three ways: it prohibits business owners from allowing such performances before minors, authorizes local governments to regulate them for public welfare, and criminalizes such performances in public or before anyone under 18. Enforcement authority rests with the Texas Attorney General for civil provisions and with local prosecutors for criminal violations.
    • Several drag performers and organizations—including The Woodlands Pride, Abilene Pride Alliance, 360 Queen Entertainment, Extragrams LLC, and drag artist Brigitte Bandit—filed a pre-enforcement suit, alleging that S.B. 12 facially violated the First Amendment. After a bench trial, the district court agreed, finding the law an unconstitutional restriction on speech and issuing a permanent injunction against enforcement. On appeal, the Fifth Circuit held that most plaintiffs lacked standing because their performances did not arguably fall within the statute’s prohibitions: the festivals’ and events’ drag shows did not include nudity, erotic gestures, or prurient appeal. Only 360 Queen Entertainment demonstrated standing, as its performances arguably involved proscribed conduct such as sexually suggestive gestures and physical contact, and because it exercised sufficient control over its performance space to be subject to the Attorney General’s enforcement authority under Section One.
    • The appellate court concluded that only the Attorney General could be sued under S.B. 12’s first section and that the other government defendants—two counties, a city, and local prosecutors—should be dismissed for lack of standing. Because the district court failed to apply the proper framework for evaluating a facial First Amendment challenge, as set out in Moody v. NetChoice, LLC (2024), the Fifth Circuit vacated the injunction and remanded the case. On remand, the district court must dismiss claims against the non–Attorney General defendants and reconsider whether Section One of S.B. 12 is facially unconstitutional by assessing whether a substantial number of its applications are invalid in relation to its legitimate scope.
    • Judge Dennis dissented in part. First, Judge Dennis concurred in part insofar as he agrees with the majority’s judgment on several procedural and jurisdictional issues: 360 Queen has standing to sue the Texas Attorney General; Woodlands Pride and Abilene Pride lack standing to sue their respective counties; sovereign immunity does not bar claims against the Attorney General; and remand is appropriate for reconsidering the plaintiffs’ facial First Amendment challenge in light of Moody v. NetChoice, LLC. However, Judge Dennis takes issue with the majority for misapplying pre-enforcement standing doctrine, ignoring legislative evidence, and undervaluing the broad reach and chilling effect of Senate Bill 12—a law designed to restrict drag performances. Judge Dennis contends that the majority’s narrow conception of “injury” and “traceability” disregards how the law’s vague and sweeping language targets expressive conduct integral to drag, while its suggestion that drag may fall outside First Amendment protection contradicts settled precedent.
    • Judge Dennis carefully recounts the origins and structure of S.B. 12, enacted amid political efforts to ban “drag shows” in the presence of minors. It outlines the law’s three enforcement mechanisms: civil penalties enforced by the Attorney General against those who “control” commercial premises; local government authority to prohibit “sexually oriented performances” on public property; and criminal penalties for individuals engaged in such performances in the presence of minors. Judge Dennis details how the plaintiffs—drag performers, producers, and LGBTQ+ nonprofits—reasonably fear prosecution under these provisions, given the statute’s undefined terms (“lewd,” “prurient,” “performer,” etc.) and legislative intent to suppress drag. The record shows that their performances, involving costuming, prosthetics, stylized dance, and expressive gender parody, are at least “arguably proscribed” by S.B. 12, satisfying pre-enforcement standing requirements.
    • Judge Dennis further concludes that plaintiffs face a credible threat of prosecution and that their injuries are traceable to the named defendants, especially the Attorney General and certain local prosecutors. He emphasizes that drag performances constitute expressive conduct protected under the First Amendment, akin to theater, dance, and satire, citing Texas v. Johnson, Spence v. Washington, and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston. Judge Dennis warns that S.B. 12 impermissibly conflates sexual expression with obscenity and circumvents established limits in Miller v. California and Ginsberg v. New York. Rejecting the majority’s suggestion of “genuine doubt” about drag’s expressive nature, he affirms that drag is a legitimate form of artistic and political speech and that S.B. 12’s vague moralistic standards endanger constitutional protections for performance art.
  • Reyes v. Bondi, 25-60016, petition for review of BIA order
    • Davis, J. (Davis, Stewart, Ramirez) (oral argument withdrawn), immigration
    • Denying Dominican citizen’s petition for review of BIA order rejecting his challenge to IJ’s denial of application for cancellation of removal.
    • The Fifth Circuit held that a forfeiture order entered solely against a defendant may constitute clear and convincing evidence that a money-laundering conspiracy involved more than $10,000, thus qualifying as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(D). Cleto Marte Dominguez Reyes, a Dominican citizen and lawful permanent resident, pleaded guilty to conspiracy to commit money laundering under 18 U.S.C. § 1956(h), and the district court entered a forfeiture order finding that he laundered $3.9 million. The Department of Homeland Security initiated removal proceedings, asserting that his offense involved more than $10,000. Relying on the judgment, indictment, presentence report, and forfeiture order, the Immigration Judge and Board of Immigration Appeals determined that Dominguez Reyes was removable as an aggravated felon. On review, the Fifth Circuit confirmed that the Board properly applied the Supreme Court’s “circumstance-specific” approach from Nijhawan v. Holder, which allows adjudicators to examine sentencing-related materials to determine the amount of funds involved in an offense.
    • Dominguez Reyes argued that a forfeiture order is not a permissible “Shepard document,” was based on a preponderance rather than a clear-and-convincing standard, was not tied to his personal conduct, and conflicted with his presentence report. The court rejected each contention. It noted that Nijhawan permits reliance on sentencing materials beyond Shepard-approved documents, that unrebutted forfeiture findings may satisfy DHS’s burden when uncontested, and that the order here clearly attributed $3.9 million to Dominguez Reyes’s own offense of conviction. The Fifth Circuit also clarified that the statutory inquiry concerns the total amount of funds laundered, not the defendant’s personal profit. Because Dominguez Reyes never challenged the forfeiture order in his criminal proceedings and the order far exceeded the $10,000 threshold, the court found no error in the BIA’s decision and denied the petition for review.
  • Calderon-Uresti v. Bondi, 24-60445, petition for review of BIA order
    • Higginbotham, J. (Higginbotham, Ho, Douglas) (no oral argument), immigration
    • Denying Mexican citizen’s petition for review of BIA order of removal that rejected both “regular rule” cancellation of removal and “special rule cancellation” under the Violence Against Women Act.
    • The Fifth Circuit denied Marilu Calderon-Uresti’s petition for review of a final order of removal, affirming the Board of Immigration Appeals’ decision rejecting her application for “special rule cancellation” of removal under the Violence Against Women Act (VAWA). Calderon-Uresti, a Mexican national, entered the United States unlawfully in 2011 and later married a U.S. citizen, Francisco Flores, with whom she had two children. She testified that Flores physically and emotionally abused her, describing repeated verbal insults, sexual coercion, physical assaults—including an incident where he struck her with a car—and one episode in which he beat her in front of their children. Although the immigration judge found her testimony credible, he denied VAWA cancellation because she failed to provide corroborating evidence such as police reports, hospital records, or witness statements, which he deemed reasonably obtainable. He also denied her alternative request for “regular rule cancellation” for lacking ten years of continuous presence.
    • On appeal, the BIA affirmed the IJ’s denial, holding that credible testimony alone did not meet the statutory evidentiary standard when corroboration was reasonably available. The Fifth Circuit agreed, emphasizing that the statute allows an IJ to require corroborating evidence even where testimony is credible. The court cited Simantov v. Bondi, a recent decision upholding a similar denial of VAWA cancellation when an applicant failed to produce available corroboration. Applying deferential “substantial evidence” review, the panel concluded that Calderon-Uresti did not meet her burden of showing that the evidence compelled a contrary result. Her inability or failure to obtain police or hospital documentation, despite months of opportunity, justified the agency’s conclusion that she had not proven battery or extreme cruelty as required by § 1229b(b)(2).
    • The court also dismissed for lack of jurisdiction Calderon-Uresti’s renewed claim for regular rule cancellation under § 1229b(b)(1), which she argued she had become eligible for after Niz-Chavez v. Garland redefined when the “stop-time rule” halts an immigrant’s accrual of continuous presence. Although the Supreme Court’s 2021 decision might have rendered her notice to appear defective—and thus allowed her to meet the ten-year requirement—the Fifth Circuit found she had failed to raise that argument in her administrative appeal, thereby failing to exhaust her remedies before the BIA. Because the BIA never had the opportunity to consider that theory, the court lacked jurisdiction to do so. The petition for review was therefore denied in full.

Unpublished decisions

  • U.S. v. Pounds, 25-10462, appeal from N.D. Tex.
    • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Baca-Rodriguez, 25-10609, c/w 25-10611, appeal from N.D. Tex.
    • per curiam (Elrod, Smith, Stewart) (no oral argument), criminal, sentencing
    • Affirming 42-month sentence and conviction for illegal reentry.
  • U.S. v. McLennan, 24-10871, appeal from N.D. Tex.
    • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
    • Affirming 80-month sentence on conviction of possession of a firearm by a felon.
  • Reese v. United Petroleum Transports, Inc., 24-10943, appeal from N.D. Tex.
    • per curiam (Wiener, Engelhardt, Oldham) (no oral argument), Title VII, employment discrimination
    • Affirming summary judgment dismissal of plaintiff’s hostile work environment and retaliation claims.
  • Howard v. Brookshire Grocery Co., 23-30448, appeal from W.D. La.
    • Richman, J. (Richman, Graves, Ramirez) (no oral argument), Graves, J., dissenting; personal tort
    • Affirming summary judgment dismissing grocery store slip-and-fall claim.
    • Howard brought a negligence action against Brookshire after slipping and falling on a mixture of water and ice while shopping at a Super 1 Foods in Lafayette, Louisiana. Surveillance footage showed that two store employees, Dale Faulk and Marcus Adams, had unloaded meat products near the area of the fall roughly twenty minutes prior, but neither appeared to spill anything. About seven to ten minutes before the fall, they left the aisle, and shortly before the accident, the store director, Lester Washington, walked directly over the same spot without noticing any spill. After Howard fell, Washington and another employee cleaned up the area, with photographs and video showing a limited amount of water. Howard claimed the spill was extensive and that she had been wet from ice and water on the floor. She sued Brookshire under Louisiana’s Merchant Liability Act, asserting the store created or had notice of the hazardous condition.
    • The district court granted summary judgment to Brookshire, finding no genuine dispute of material fact that the store created or knew of the spill. On appeal, Howard argued that Brookshire created the hazard either directly through its employees’ unloading activities, by maintaining slippery floors, or through poor floor maintenance, and alternatively, that it had actual or constructive notice. The Fifth Circuit reviewed the record de novo, applying Louisiana’s statutory requirements that a plaintiff show (1) an unreasonable risk of harm, (2) the merchant’s creation or notice of the condition, and (3) failure to exercise reasonable care. The appellate court focused on the second element—creation or notice. It held that Howard offered no positive evidence that Brookshire created the spill, rejecting her theory that ice or water could have fallen from products or boxes, since deposition testimony and video footage contradicted that claim. Likewise, her argument about non-slip flooring failed because her expert could not establish that Brookshire’s maintenance practices caused the lack of slip resistance.
    • The court further found no evidence of actual or constructive notice. Washington’s testimony and the video refuted the claim that he saw or slipped on the spill moments before Howard’s fall. Nor was there evidence the spill existed long enough for Brookshire to have discovered it. The court distinguished Howard’s case from Louisiana precedents like Bagley v. Albertsons, where the spill’s size and spread supported an inference of duration, and instead likened it to Family Dollar Store, where puddle size alone was insufficient. Because Howard’s claim relied on speculation rather than “positive evidence” of the spill’s source or duration, she failed to meet her burden under the Merchant Liability Act. Accordingly, the Fifth Circuit affirmed the district court’s summary judgment in favor of Brookshire.
    • Judge Graves dissented, contending that the majority improperly weighed evidence and ignored material factual disputes in concluding that Howard failed to prove Brookshire created the hazard under Louisiana’s Merchant Liability Act. Judge Graves points to testimony from multiple employees confirming that frozen items and ice were present in nearby freezers and coolers, that frozen products were stocked just before the fall, and that the store assigned staff to monitor that specific area for spills. He contends that the store video, showing employees unloading frozen and chilled products on dollies directly over the area where Howard later slipped, supports an inference that ice or water came from those activities. Judge Graves critiques the majority for interpreting the video and deposition testimony narrowly, drawing inferences against the nonmovant, and effectively making credibility determinations at summary judgment. Citing Deshotel v. Wal-Mart and related precedent, Judge Graves concludes that the evidence—testimony, video, and known maintenance practices—creates a genuine issue of material fact as to whether Brookshire either created or failed to properly maintain the floor hazard, warranting vacatur of summary judgment and remand.
  • Descant v. CTCI Americas, Inc., 25-40112, appeal from S.D. Tex.
    • per curiam (Stewart, Graves, Oldham) (no oral argument), Fair Labor Standards Act, costs
    • Affirming summary judgment for defendant on plaintiffs’ FLSA claims, and affirming award of costs.
  • Smart v. U.S., 25-50120, appeal from W.D. Tex.
    • per curiam (Davis, Stewart, Ramirez) (no oral argument), Federal Tort Claims Act
    • Affirming dismissal of plaintiff’s FTCA claim arising from alleged medical negligence by the Department of Veterans Affairs provision of mental health treatment to plaintiff.
  • Jordan v. Houston, 25-60248, appeal from S.D. Miss.
    • per curiam (Smith, Haynes, Oldham) (no oral argument), prisoner suit
    • Dismissing for lack of appellate jurisdiction (due to untimely notice of appeal) appeal from summary judgment dismissal of Mississippi state prisoner’s § 1983 claims.
  • U.S. v. Washington, 24-60566, appeal from S.D. Miss.
    • per curiam (Barksdale, Oldham, Douglas) (no oral argument), criminal, search and seizure
    • Affirming conviction of conspiracy to distribute and possession with intent to distribute methamphetamine, upholding denial of motion to suppress.