The following are summaries of selected criminal opinions issued by the United States Court of Appeals for the Fifth Circuit. The summaries are overviews; please review the entire opinions. The subsequent histories are current as of September 8, 2025. Below are recent decisions from the United States Fifth Circuit of Appeals.
ON-CAMPUS FIRST AMENDMENT EXPRESSION: Denial of preliminary injunction reversed.
Spectrum WT v. Wendler, No. 2310994: An LGBT+ student organization at West Texas A&M University planned a charity drag show fundraiser. Despite prior instances of allowing similar events on campus, university president Wendler canceled the show, deeming drag to be demeaning to women.
The Fifth Circuit reversed the district court’s denial of a preliminary injunction, holding that the drag show constituted expressive conduct protected by the First Amendment. The panel majority, led by Judge Southwick and joined by Judge Dennis, concluded that the performance (a theatrical on-stage event symbolic of LGBT+ support) sufficiently conveyed a message likely to be understood by the audience. It held that the university’s performance venue was a designated public forum based on its open use by various campus and community groups. Consequently, the ban was judged as a content-based restriction subject to strict scrutiny, which West Texas A&M had not argued could be satisfied.
The panel also found irreparable First Amendment injury and that granting an injunction served the public interest. It affirmed injunctive relief against Wendler and an official who aided in the ban but dismissed the claim against the chancellor of the university for lack of standing. Judge Ho dissented.
This decision reflects that a drag show can be expressive conduct entitled to First Amendment protection even without a narrowly articulable message, provided that intent and context demonstrate a communicative purpose. It also reinforces First Amendment protections for oncampus expressive activities in designated public fora. Within higher-education settings, this new decision reflects key limitations on administrative discretion to suppress expression based on content or viewpoint.
CONTRACT DISPUTE: Fifth Circuit reverses denial of fee shifting following contract termination.
Penthol, L.L.C. v. Vertex Energy Operating, L.L.C., No. 2420329: The Fifth Circuit affirmed that plaintiff Penthol did not commit anticipatory repudiation of a sales agreement. A conditional termination threat subject to a 30-business-day cure period did not amount to an unconditional refusal to perform, which was a prerequisite under Texas law for anticipatory breach. Defendant Vertex prematurely declared termination, effectively executing a “preemptive strike.” The district court’s finding that the ultimate termination was mutual—initiated by Vertex and confirmed by Penthol—was upheld on appeal.
Regarding fees and costs, the Fifth Circuit vacated the district court’s denial of attorneys’ fees under the contract’s feeshifting clause. The panel held that a “mutual termination” does not preclude one party from being a “defaulting party” under the agreement. Thus, Vertex could still recover reasonable expenses, including legal fees, associated with enforcing its contractual rights. The case was remanded to determine entitlement to such costs. The panel, however, affirmed the district court’s discretionary denial of prevailing-party costs under Rule 54(d), finding no abuse of discretion given the complexity of the issues, good-faith conduct by both parties, and a well-explained decision below.
This decision highlights that parties in contract disputes should carefully analyze termination dynamics. They should not assume that mutual termination automatically erases fee-shifting rights. Contractual feeshifting provisions may still apply even in the context of a mutual dissolution of contract obligations. On the other hand, awards of discretionary costs under Rule 54(d) can still be challenging to obtain in this context and may remain unavailable absent compelling reasons.
TAKINGS: Mere potential for speculative sale insufficient to show residual economically viable use.
DM Arbor Court, Ltd. v. City of Houston, No. 2320385: After Hurricane Harvey flooded the Arbor Court apartments in 2017, the City of Houston invoked a seldom-used flood-control ordinance to deny repair permits unless buildings were elevated. The Fifth Circuit held that the denial extinguished all economically viable use of the property, constituting a categorical taking under Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Both parties’ experts agreed that elevating the complex would cost $40-46 million, rendering any redevelopment economically infeasible. The district court had concluded that the ability to hold the property for investment or sell it retained “use,” but the Fifth Circuit rejected that view. The mere potential that property may be held indefinitely as an investment or attract a speculative sale does not provide the “economically viable use” required under Lucas to avoid a categorical taking.
The panel emphasized that where a regulation imposes permanent deprivation of all productive use, a categorical taking occurs even if a market sale remains possible. Importantly, the Court declined to consider in the first instance the City’s late-raised argument that the ordinance fell within Lucas’s exception for “background principles” of takings, like nuisance prevention.
This opinion reinforces that municipalities will likely face strict constitutional limits when imposing post-disaster land-use regulations. Even safety-driven permitting restrictions may require just compensation if they leave no feasible economic use. Local governments should assess takings risks carefully when implementing new restrictions, particularly where increased compliance costs may make redevelopment effectively impossible.