Texas will have a busy week in the U.S. Court of Appeals for the Fifth Circuit, with arguments starting Tuesday in a number of cases involving hotly contested issues, including border security, drag shows, and the death penalty.
Notably, each case will be heard en banc, meaning all 17 active judges will participate, as opposed to a smaller panel of judges. Texas Bullpen will be on the ground in New Orleans to cover the arguments from inside the courtroom.
Here’s the week at a glance:
Tuesday, Jan. 20: Mara Nathan, Et Al. v. Alamo Heights Independent School District, Et Al.
In 2025, the Texas Legislature passed Senate Bill (SB) 10, which requires public schools to post donated copies of the Ten Commandments in classrooms. The bill was hotly contested in the legislature, with Republicans eventually passing it over Democrats’ opposition.
The law was immediately challenged in 11 public school districts, including Austin, Houston, and Plano. Soon after, an Austin-based federal district judge barred the implementation of the new law in those districts.
Texas Attorney General Ken Paxton then appealed the case to the Fifth Circuit, which combined Texas’ case with a similar one in Louisiana.
While the issue plays out in court, Texas Republicans have worked to ensure that public school districts are still abiding by the law.
In October, Paxton issued an advisory directing schools to post the Decalogue or risk legal action. He also promised to defend schools that may be sued for following the state law.
So far, Round Rock, Leander, and Galveston Independent School Districts have been sued by Paxton for allegedly refusing to abide by the law.
However, the following month a federal judge issued a preliminary injunction ordering 14 school districts to remove Ten Commandments posters that had already been posted after families represented by the American Civil Liberties Union and other activist organizations sued for religious liberty violations.
Wednesday, Jan. 21: Brittany Marlowe Holberg v. Eric Guerrero
Last March, a Fifth Circuit panel overturned the death penalty of Brittany Holberg following her 1998 conviction for the murder of an 80-year-old man.
Holberg, a 23-year-old prostitute at the time, entered the apartment of A.B. Towery, Sr., a former customer, following a minor traffic accident. According to Holberg, Towery attacked her. She then proceeded to stab him 58 times and eventually shoved a foot-long lamp base down his throat.
For Holberg’s 1998 trial, a cellmate testified that Holberg confessed to killing Towery to get money for drugs. According to the cellmate, Holberg called the murder “fun and amazing” and said she would kill again.
The case’s latest twist happened last March, when the Fifth Circuit vacated Holberg’s conviction, ruling that the prosecution failed to disclose that the cellmate was a paid informant for the Amarillo Police Department. Texas appealed that ruling and the court voted to grant a rehearing.
Thursday, Jan. 22: USA, Et Al. v. State of Texas, Et Al.
Thursday’s offering will be concerning the major border security legislation passed by the Texas Legislature in 2023.
SB 4 classified border crossings as a state crime, making a first offense a misdemeanor and subsequent offenses a felony punishable by at least two years in prison and up to $10,000 in fines. The law also allowed a state judge to dismiss penalties for first-time offenders who agreed to voluntarily return across the border.
The law has been in legal limbo since its passage by the Texas Legislature, as it has bounced between the district court, circuit court, and U.S. Supreme Court. At times, the law would go from being in effect, to being enjoined, to being back in effect within hours or days.
The Biden Administration’s U.S. Department of Justice immediately sued Texas and an Austin-based federal district judge issued a preliminary injunction. Texas appealed to the Fifth Circuit, which stayed the lower court’s decision, functionally allowing the law to be enforced. The DOJ then went to the U.S. Supreme Court, which first paused the Fifth Circuit’s stay, reverting the case back to its original district court injunction while justices considered the issue.
In March 2024, the U.S. Supreme Court rejected the DOJ’s request and allowed Texas to enforce its law. However, a move later that same day by a panel on the Fifth Circuit once again stopped the law from taking effect. A week later, that same panel denied Texas’s appeal and again upheld the injunction in July 2024.
By that point, the new Trump Administration had withdrawn from the case, though other plaintiffs, such as El Paso County and several nonprofit pro-immigration organizations, have continued the suit.
Friday, Jan. 23: Spectrum WT, Et Al., Appellants v. Walter Wendler, Et Al.
West Texas A&M University President Walker Wendler’s ban on drag shows on university grounds in 2023 ignited a legal firestorm that is still raging as the Fifth Circuit will rehear a prior panel’s decision overturning the ban.
The student group planning the drag show, Spectrum WT, sued President Wendler and other university officials, represented by the free speech activist group Foundation for Individual Rights and Expression (FIRE).
“Hopefully, this lawsuit will not just help us the LGBTQ+ students here at WTAMU protect our rights, but also help protect students’ rights across the U.S.,” Spectrum WT’s president said upon filing.
The federal district court sided with President Wendle and denied the group’s request for a preliminary injunction. In March 2024, Spectrum WT and FIRE made an emergency appeal to the U.S. Supreme Court after Wendle indicated he would cancel another drag show.
The legal maneuver attempted to leap-frog over the Fifth Circuit, and SCOTUS rejected the motion. At the time, Paxton said that West Texas A&M’s efforts to prevent “exposure to obscene conduct are completely defensible.”
However, when the case finally made it before a Fifth Circuit, the panel ruled 2-1 to issue an injunction against West Texas A&M’s drag show ban. Texas moved for a rehearing en banc, which was granted and will take place Friday morning.
