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A federal appeals court has once again weighed in on one of Texas’s most closely watched legal disputes involving the regulation of sexually oriented performances.
On February 25, 2026, the United States Court of Appeals for the Fifth Circuit issued a revised opinion in the ongoing lawsuit challenging Texas Senate Bill 12 (SB 12), passed in the 88th Legislative Session (2023) and authored by State Sen. Bryan Hughes (R-Mineola), the state law regulating sexually oriented performances in the presence of minors. The ruling follows an earlier appellate decision issued in November 2025 that lifted a federal injunction preventing the law from taking effect.
For many observers, the February decision created confusion. Some coverage suggested that the court had newly allowed the law to take effect, while other reporting framed the ruling as merely procedural. In reality, the February decision did not newly reinstate the law. Instead, the Fifth Circuit denied a petition for rehearing, withdrew its earlier opinion, and replaced it with a revised opinion that reached the same result.
The practical effect remains the same as it was after the November 2025 ruling. The injunction blocking SB 12 has been vacated, meaning Texas is no longer prohibited from enforcing the statute while the underlying constitutional challenge continues in federal court.
Understanding what the February ruling changes and what it leaves unresolved requires examining both the structure of the law itself and the legal path the case has taken through the federal courts.
SB 12 and the Regulation of Sexually Oriented Performances
Senate Bill 12 regulates sexually oriented performances that occur on public property or in the presence of minors.
Although public debate has frequently referred to SB 12 as a “drag show ban”, the statutory text does not reference drag performances specifically. Instead, the law focuses on performances that meet the legal definition of a sexually oriented performance.
Under SB 12, a sexually oriented performance is defined as a visual performance that includes a performer who is nude or engages in certain forms of sexual conduct, and that appeals to the prurient interest in sex.
The statute establishes three primary regulatory provisions.
First, a person who controls the premises of a commercial enterprise may not allow a sexually oriented performance to occur in the presence of an individual younger than 18 years of age. This provision is enforced by the Texas Attorney General through civil penalties and injunctive actions. Second, municipalities and counties are authorized to regulate sexually oriented performances to promote public health and safety, but may not permit such performances on public property or in the presence of minors. Third, the Texas Penal Code establishes a criminal offense for engaging in a sexually oriented performance either on public property where a child could reasonably view the performance or directly in the presence of a minor.
Shortly before the law was scheduled to take effect, several plaintiffs involved in drag entertainment filed a federal lawsuit arguing that SB 12 violates the First Amendment and is unconstitutionally vague.
The Legal Timeline of the Texas Drag Show Law Challenge
The February 2026 ruling makes the most sense when viewed within the broader legal timeline of the case.
In 2023, a federal district court in the Southern District of Texas ruled in favor of the plaintiffs. The district court concluded that SB 12 violated the First Amendment and issued a permanent injunction blocking enforcement of the law statewide. As a result of that ruling, Texas officials were prevented from enforcing SB 12 while the case moved through the appellate process.
On November 6, 2025, the United States Court of Appeals for the Fifth Circuit vacated the district court’s injunction. The appellate court concluded that the district court had applied the wrong legal framework when evaluating the constitutional claims and sent the case back for further review. Because the injunction blocking the law was vacated, there was no longer a court order preventing the state from enforcing SB 12.
In practical terms, the November 2025 ruling effectively reinstated the law while litigation continued.
The plaintiffs then asked the Fifth Circuit to reconsider that decision through a petition for rehearing.
On February 25, 2026, the Fifth Circuit denied the rehearing request. The court withdrew its earlier opinion and issued a revised version that clarified portions of the analysis but reached the same conclusion. The injunction remains vacated, and the case has been remanded to the district court for further proceedings.
Standing and the Narrowing of the SB 12 Lawsuit
One of the most significant aspects of the Fifth Circuit’s decision involves the issue of standing.
Federal courts require plaintiffs to demonstrate a concrete injury that is fairly traceable to the challenged law and that could be resolved by a favorable court ruling. The Fifth Circuit concluded that most of the plaintiffs in the case failed to meet this requirement.
Organizations such as Woodlands Pride and Abilene Pride host community events that include drag performances, but the court determined that the evidence presented at trial did not show that their performances would likely violate SB 12. Because their activities did not appear to fall within the statute’s definition of sexually oriented performances, the court concluded that they lacked standing to challenge the law.
Similarly, other plaintiffs were unable to demonstrate that enforcement of the law would be traceable to the specific government officials they had sued.
The Fifth Circuit therefore instructed the district court to dismiss claims against several defendants, including Montgomery County, Taylor County, and the City of Abilene.
This ruling significantly narrows the scope of the case moving forward.
The Remaining Plaintiff and the Attorney General’s Role
Although most plaintiffs were dismissed from the case, one plaintiff was allowed to proceed.
The Fifth Circuit concluded that the San Antonio-based drag production company 360 Queen Entertainment demonstrated a credible risk of enforcement under SB 12.
The company organizes performances at a restaurant patio venue where it controls ticket sales and admission. Evidence presented at trial indicated that performers sometimes use exaggerated prosthetics, engage in physical interaction with audience members, and occasionally perform in situations where minors may be present.
Because these activities could arguably fall within the statutory definition of sexually oriented conduct, the court concluded that the company faces a credible threat of enforcement by the Texas Attorney General under the civil penalty provision of the statute. As a result, the lawsuit may continue, but only against the Attorney General and only with respect to the portion of the law he is authorized to enforce.
First Amendment Analysis of SB 12
The Fifth Circuit did not ultimately decide whether SB 12 violates the First Amendment.
Instead, the court concluded that the district court had used the wrong legal framework when evaluating the constitutional challenge.
In 2024, the United States Supreme Court clarified the proper approach for evaluating facial free speech challenges in the case Moody v. NetChoice. Under that framework, courts must determine whether a substantial number of a law’s applications are unconstitutional when compared to the statute’s legitimate uses. This requires evaluating the full range of conduct regulated by the law, identifying which applications violate the First Amendment, and comparing those unconstitutional applications to the law’s valid applications.
Because the district court did not perform that analysis, the Fifth Circuit remanded the case so the lower court could reconsider the First Amendment claims using the correct legal standard.
Vagueness Challenge to SB 12
The plaintiffs also argued that SB 12 is unconstitutionally vague under the Fourteenth Amendment.
A statute may be considered vague if it fails to provide ordinary people with a reasonable understanding of what conduct is prohibited or if it allows arbitrary enforcement.
The district court previously concluded that SB 12 was vague. However, the Fifth Circuit determined that the lower court did not apply the correct legal standard when reaching that conclusion. Facial vagueness challenges require demonstrating that a statute is vague in the vast majority of its intended applications.
Because the district court did not conduct this analysis, the appellate court remanded the issue for reconsideration.
What Happens Next in the SB 12 Litigation
The February 2026 ruling does not resolve the constitutional questions surrounding SB 12.
Instead, it clarifies which parties may pursue the lawsuit and instructs the district court to reconsider the legal challenges under the proper constitutional standards. Most plaintiffs and defendants have been dismissed from the case due to a lack of standing. The remaining litigation will focus primarily on whether the portion of SB 12 enforced by the Texas Attorney General violates the First Amendment or is unconstitutionally vague.
In the meantime, because the injunction blocking enforcement of the statute has been vacated, Texas is no longer prohibited from enforcing SB 12 while the case continues.
The Future of SB 12
The Fifth Circuit’s February 2026 ruling largely reaffirms the court’s earlier decision from November 2025 while clarifying the legal posture of the case.
The injunction blocking enforcement of SB 12 has been lifted, allowing the state to enforce the law while the constitutional challenge proceeds in federal court. At the same time, the court did not issue a final ruling on whether the statute ultimately complies with the First Amendment or the Due Process Clause.
Those questions now return to the district court, where the next stage of litigation will determine whether SB 12 survives constitutional scrutiny.
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