A federal judge has again blocked Texas Attorney General Ken Paxton (R-Texas) from enforcing the civil provision of a 2023 law meant to keep sexually oriented performances away from minors.
U.S. District Judge David Hittner of the Southern District of Texas declared Senate Bill 12 unconstitutional Tuesday in Filing 165 of Extragrams LLC v. Paxton, Civil Action No. H-23-2847. He immediately and permanently enjoined Paxton from enforcing the law and denied Paxton’s request for a new or supplemental trial and additional discovery.
The current plaintiffs are Extragrams LLC, 360 Queen Entertainment LLC, and Brigitte Bandit. Paxton, sued in his official capacity, is the sole remaining defendant.
As previously reported by The Dallas Express, the Fifth U.S. Circuit Court of Appeals vacated Hittner’s earlier injunction in its February 25, 2026, ruling in The Woodlands Pride Inc. v. Paxton, No. 23-20480.
The law became enforceable while Hittner reconsidered specified First Amendment issues. The appellate court did not declare SB 12 constitutional.
Paxton called the decision profoundly flawed and argued that it endangered children. “I will appeal this decision immediately and continue to fight to protect our kids,” he wrote in an official statement.
No notice of appeal, emergency motion or stay request appeared on the public district-court docket as of Friday morning. No stay permits Paxton to enforce Section One despite Hittner’s August 25 order.
What SB 12 says
The final enrolled law does not use the word drag or prohibit drag performances as a category. It defines a sexually oriented performance as a visual performance that features nudity or statutorily defined sexual conduct and appeals to the prurient interest in sex. The law took effect September 1, 2023.
Section One bars a person who controls the premises of a commercial enterprise from allowing such a performance in the presence of someone younger than 18. Paxton may seek an injunction or a civil penalty of up to $10,000 per violation.
Section Two authorizes local regulation. Section Three creates a Class A misdemeanor for engaging in a sexually oriented performance on public property, on the premises of a commercial enterprise or in the presence of someone younger than 18. It is punishable by up to one year in jail, a fine of up to $4,000, or both.
Lawmakers described a “recent cultural trend” of drag shows accessible to children and said some were sexually explicit, according to an official Senate analysis. The legislative record also cited an October 18, 2022, all-ages event at Ebb & Flow in Plano where a performer gyrated and lifted a skirt before a young girl, according to a House analysis.
The Dallas Express previously reported on that controversy. The enacted law applies through its statutory definition, not a performer’s identity or costume alone.
The child-protection dispute
Texas argues that the First Amendment allows it to shield minors from sexualized performances. The Fifth Circuit had “genuine doubt” that trial-record conduct such as putting prosthetic breasts in audience members’ faces and inviting spanking received constitutional protection before minors. The panel left that analysis to Hittner on remand.
The plaintiffs contend that SB 12 reaches protected performances that are neither obscene nor legally obscene for minors. Hittner agreed after applying the two facial tests ordered by the Fifth Circuit.
Why Hittner blocked Paxton again
Under Moody v. NetChoice, Hittner identified the range of Section One’s applications and compared constitutional uses with unconstitutional ones. He found that the unconstitutional applications substantially outweighed the law’s legitimate sweep.
The judge concluded that SB 12 imposed content- and viewpoint-based restrictions and could reach protected expression outside constitutional obscenity.
Hittner reasoned that the language could reach performances far removed from lawmakers’ target. His hypotheticals included cheerleading, ballet, theater, comedy, Dolly Parton and Elvis impersonators, and a wardrobe malfunction. They were not examples of actual Texas enforcement.
Under Roy v. City of Monroe, Hittner also found Section One facially vague. He said the undefined phrase “prurient interest in sex” did not give ordinary people adequate notice of prohibited conduct or sufficiently limit arbitrary enforcement.
He also cited uncertainty over terms including “lewd” and “performer” and over who controls a commercial venue.
Hittner rejected Paxton’s request for another trial or more discovery. The original trial record and more than 230 pages of supplemental briefing were sufficient to follow the appellate mandate, he found.
What the injunction does
The August 25 amended injunction names only Paxton, whose statutory authority extends only to Section One. It therefore stops the attorney general’s civil enforcement.
The Fifth Circuit separately noted that the Travis County and Bexar County prosecutors did not appeal Hittner’s original 2023 injunction, so the appellate court’s vacatur did not extend to them. The local officials who did appeal were dismissed for lack of standing. Filing 165 therefore does not provide a simple statewide answer for every possible Section Two or Section Three enforcement action.
“Today’s decision confirms that the Legislature’s attempt to ban drag performances was unconstitutional from start to finish,” Brian Klosterboer, an ACLU of Texas attorney representing the plaintiffs, said in the group’s response. The final enrolled law, however, regulates sexually oriented performances and does not use the word drag.
If Paxton files the promised appeal, the Fifth Circuit will again become the next major decisionmaker. Unless a higher court grants a stay or reverses Hittner, Paxton remains barred from enforcing Section One.
Provided by Dallas Express
