A federal judge in Houston has again struck down Texas Senate Bill 12, the 2023 statute that bars sexually oriented performances in the presence of children and on certain public property. U.S. District Judge David Hittner ruled the law unconstitutional and permanently enjoined Attorney General Ken Paxton from enforcing it. Paxton said he will appeal immediately to the U.S. Court of Appeals for the Fifth Circuit.
Critics call SB 12 a “drag show ban.” The statute itself never uses that phrase. It targets “sexually oriented performances” on commercial premises when anyone under 18 is present, and similar performances on public property where a child could reasonably be expected to see them. The attorney general and local officials share enforcement authority. Businesses can face civil penalties of up to $10,000 per violation; performers can face a Class A misdemeanor.
How the case reached this point
Hittner first blocked the law in September 2023, before it took effect, after a lawsuit by drag performer Brigitte Bandit and others in the industry. He held that the measure was an unconstitutional restriction on speech and too vague to give fair notice of what is prohibited.
In late 2025 and early 2026, the Fifth Circuit vacated that injunction, narrowed the case, and sent it back. The appeals court dismissed claims against counties, cities, and local prosecutors, leaving Paxton as the sole defendant. It also held that some original plaintiffs lacked standing because their planned activities were not “arguably proscribed” by the law. The remaining plaintiffs are Bandit, Extragrams LLC, and 360 Queen Entertainment LLC.
The Fifth Circuit told Hittner to decide a single issue: whether Section One of SB 12, on its face, violates the First Amendment. That section makes it unlawful for a person who controls a commercial premises to allow a sexually oriented performance in the presence of anyone under 18.
The law became enforceable in March 2026 while the district court reconsidered the case.
The latest ruling
On August 25, 2026, Hittner again found the statute unconstitutional and issued a permanent injunction against the attorney general.
“The Court concludes that Texas Senate Bill 12 violates the First Amendment as incorporated to the State of Texas by the Fourteenth Amendment of the United States Constitution,” he wrote. “The Court further ORDERS that the Attorney General of Texas is immediately and permanently enjoined from enforcing Texas Senate Bill 12.”
Hittner concluded the law is both overbroad and unconstitutionally vague. He wrote that undefined terms such as “prurient interest in sex” and “visual performance” could sweep in a wide range of otherwise protected expression, and that “a single moment of eroticism could condemn an entire performance.” He also denied Paxton’s request for a new trial and additional discovery.
Paxton’s response
Paxton announced on X that he will take the ruling back to the Fifth Circuit.
“This is a profoundly flawed decision that endangers our children and is an affront to Texas values,” he wrote. “I will appeal this decision immediately and continue to fight to protect our kids.”
Brady Gray of the Texas Family Project said: “This is now twice that Judge Hittner has ruled in favor of drag perverts and against common sense legislation designed to protect children.”
The case now returns to the same appeals court that previously lifted Hittner’s first injunction and allowed the law to take effect. That court can affirm, reverse, or modify whether the injunction remains in place while the appeal proceeds.
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