Fifth Circuit Grants En Banc Rehearing in Texas SCOPE Act Case

Fifth Circuit Grants En Banc Rehearing in Texas SCOPE Act Case, Vacating the Panel Opinion

The Fifth Circuit entered an order on October 28, 2026 granting rehearing en banc in the consolidated challenges to Texas House Bill 18, the SCOPE Act, and vacated the three judge panel opinion issued July 24, 2026. No en banc decision has been made.

Information last verified on October 29, 2026. This is a developing story; we update it as the record changes.

Status: Order entered October 28, 2026 in Nos. 24-50721 and 25-50096 (5th Cir.). Rehearing en banc was granted on a poll of the active judges, the July 24, 2026 panel opinion is vacated under 5th Cir. R. 41.3, the Clerk is to set a supplemental briefing schedule, and oral argument is to be scheduled on a date not yet fixed. The en banc court has issued no decision on the merits as of October 29, 2026.

Jurisdiction scope: This article addresses a federal appellate order in the Fifth Circuit and the Texas statute it concerns, Chapter 509 of the Texas Business & Commerce Code. It does not address Texas Chapter 129B, the separate age verification law for commercial sites, or the social media statutes of other states. For a national picture, see our state-by-state age verification laws tracker.

What Happened

On October 28, 2026 the United States Court of Appeals for the Fifth Circuit entered a per curiam order on petition for rehearing en banc in Computer & Communications Industry Association v. Paxton, No. 24-50721, consolidated with Students Engaged in Advancing Texas v. Paxton, No. 25-50096. The order states that a member of the court requested a poll on the petition and that a majority of the circuit judges in regular active service and not disqualified voted in favor. The order gives no numerical vote tally.

The operative language is short:

"IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs. Pursuant to 5th Circuit Rule 41.3, the panel opinion in this case dated July 24, 2026, is VACATED." Source: Order on Petition for Rehearing En Banc, CCIA v. Paxton, No. 24-50721 c/w No. 25-50096 (5th Cir. Oct. 28, 2026), at 2

Three things follow directly from that text. Supplemental briefing is ordered but its schedule has not yet issued. Oral argument is ordered, on a date to be fixed later. And the panel opinion of July 24, 2026, reported at 184 F.4th 420 according to the caption of the en banc order itself, is gone.

The order is per curiam and carries no individual signature. Its caption lists Chief Judge Elrod and sixteen circuit judges: Jones, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas and Ramirez. The underlying appeals come from the Western District of Texas, USDC Nos. 1:24-CV-849 and 1:24-CV-945.

What Rule 41.3 does

Fifth Circuit Rule 41.3, in the December 2025 edition of the court's Rules and Internal Operating Procedures, provides that "[u]nless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate." The October 28 order expressly invokes Rule 41.3 and provides nothing to the contrary. The same rule adds a quorum backstop: if the court lacks a quorum to act on an en banc case for 30 consecutive days, the case returns automatically to the panel, the panel opinion is reinstated as an unpublished and therefore nonprecedential opinion, and the mandate is released. A quorum means a majority of the en banc court as defined by 28 U.S.C. 46(c).

That last clause matters. Even in the scenario where the full court cannot act, the rule does not restore the panel opinion as precedent. It comes back unpublished.

What the Vacated Panel Opinion Had Held

The July 24, 2026 opinion was written by Circuit Judge Dana M. Douglas for a panel of Circuit Judges Higginbotham, Ho and Douglas. It resolved two consolidated pre-enforcement challenges differently.

The CCIA plaintiffs, the Computer & Communications Industry Association and NetChoice, whose members include Google, Meta and X, with NetChoice also counting the owners of Nextdoor, Snapchat and Pinterest, had won a preliminary injunction from the district court on August 30, 2024 against Chapter 509's monitoring and filtering requirement, reported at Computer & Commc'ns Indus. Ass'n v. Paxton, 747 F. Supp. 3d 1011 (W.D. Tex. 2024). The panel affirmed that injunction, but on a single statutory ground: it held that the monitoring and filtering requirement in Texas Business & Commerce Code section 509.053 is preempted by Section 230 of the Communications Decency Act, 47 U.S.C. 230(c)(1). Having resolved the case on preemption, the panel expressly declined to reach the First Amendment and vagueness questions.

The SEAT plaintiffs fared worse. They are a student coalition, a sixteen year old high school student, an Austin advertising agency and an adult creator who posts about bipolar disorder, none of them a regulated digital service provider. They had won a broader preliminary injunction on February 7, 2025, reported at Students Engaged in Advancing Tex. v. Paxton, 765 F. Supp. 3d 575 (W.D. Tex. 2025), covering the monitoring and filtering, targeted ads, unlawful ads and age verification requirements. The panel held that they had not clearly shown standing to challenge the monitoring and filtering, targeted ads and unlawful ads provisions, because a plaintiff who is not directly regulated must show that the regulated third parties will likely react in predictable ways and that this reaction poses a substantial risk of suppressing the plaintiff's own speech. On this record, the panel wrote, their self censorship amounted to a subjective chill.

As to their age verification challenge, the panel held it was foreclosed by the Supreme Court's decision in Free Speech Coalition, Inc. v. Paxton, 606 U.S. 461 (2025), which upheld a materially similar requirement for pornographic websites under intermediate scrutiny; the panel noted in a footnote that the appellees did not oppose the Attorney General on that point. The panel therefore vacated the SEAT injunction and remanded, observing in a footnote that it was not clear the standing showing could not be cured.

Judge Ho concurred in the judgment in part and dissented in part. He concurred in the panel's partial vacatur of the district court's injunction, but would have gone further and vacated it in its entirety. His disagreement was about the scope of Section 230: in his view the statute is triggered only when a provider is treated as the publisher or speaker of content provided by another information content provider, so it does not reach a platform's own curation of third party content, which Moody v. NetChoice, 603 U.S. 707 (2024), treats as the platform's own speech. He also wrote that he would have certified questions about the meaning of the SCOPE Act to the Supreme Court of Texas.

None of that is law today. Vacatur removes the opinion, the majority's preemption holding and the separate writing alike.

What the SCOPE Act Actually Requires

HB 18 passed the Texas House on April 26, 2023 by a vote of 125 to 20, passed the Senate with amendments on May 23, 2023 by 31 to 0, was signed by the Governor on June 13, 2023, and took effect September 1, 2024 for the Chapter 509 provisions. Its lead author was Representative Slawson, with Representatives Patterson, Mary Gonzalez, Burrows and Darby also listed as authors on the Texas Legislature Online bill history. Section 1.01 of the Act names it the Securing Children Online through Parental Empowerment (SCOPE) Act.

Who is covered. A "digital service provider" under section 509.001(2) is a person who owns or operates a digital service and determines both the purpose and the means of collecting and processing users' personal identifying information. Except for the age verification duty, section 509.002(a) limits the chapter to services that connect users so they can socially interact, let users create a public or semi public profile for signing in, and let users create or post content viewable by other users, including on a message board, chat room, landing page, video channel or main feed. Section 509.002(b) then exempts ten categories, among them state agencies and political subdivisions, Gramm-Leach-Bliley financial institutions, HIPAA covered entities and business associates, small businesses as defined by the Small Business Administration on September 1, 2024, institutions of higher education, employment related processing, certain education service providers and FERPA subjects, email and direct messaging only services, and services that primarily provide access to news, sports, commerce or provider selected content with only incidental interactive functionality. Section 509.002(c) carves out internet service providers, search engines and cloud providers that merely supply access or connection.

The duties. Section 509.051 bars a provider from creating an account for a person who has not registered an age, and treats anyone who registers as under 18 as a "known minor" until that person's eighteenth birthday. Section 509.052 limits collection and use of a known minor's personal identifying information to what is reasonably necessary and to the original purpose, and prohibits allowing purchases, sharing or selling the minor's information, collecting precise geolocation, and displaying targeted advertising to the known minor, unless a verified parent provides otherwise.

Section 509.053 is the provision the vacated panel opinion turned on. It requires a provider to develop and implement a strategy to prevent a known minor's exposure to "harmful material," a term borrowed from Texas Penal Code section 43.24, and to other content that promotes, glorifies or facilitates suicide, self harm or eating disorders; substance abuse; stalking, bullying or harassment; or grooming, trafficking, child pornography or other sexual exploitation or abuse. Subsection (b)(1) spells out what the strategy must include: a comprehensive block list, filtering technology, hash sharing technology, a keyword database for filter evasion such as misspellings, hashtags and homoglyphs, standard human performed monitoring reviews, a public description of the filtered categories, and disclosure of the provider's algorithm code to independent security researchers subject to the trade secret provision in section 509.058.

Section 509.054 requires parental tools covering privacy and account settings, the ability to alter the section 509.052 duties, purchase restrictions and screen time limits. Section 509.055 requires a commercially reasonable effort to stop advertisers from targeting known minors with ads for products, services or activities that are unlawful for a Texas minor. Section 509.056 governs recommendation algorithms and requires disclosure of how they rank and filter content and what personal identifying information they use as inputs.

Section 509.057 is the age verification duty, and it is the one provision that reaches any digital service provider rather than only social services. A provider that knowingly publishes or distributes material more than one third of which is harmful material or obscene as defined by Texas Penal Code section 43.21 must use a commercially reasonable age verification method to confirm that anyone seeking access is 18 or older, and may not contract for access with a person who is not.

Enforcement. Section 509.151 makes a violation a deceptive act or practice actionable under Subchapter E of Chapter 17 of the Business & Commerce Code, solely as an enforcement action by the consumer protection division of the Attorney General's office. Section 509.152 denies a general private right of action but lets the parent or guardian of an affected known minor seek a declaratory judgment or an injunction against the provider, and bars class certification of such an action. Section 5.01 of the Act declares its provisions severable.

This is a different statute from the Texas law requiring age verification on commercial sites distributing sexual material harmful to minors, which the Supreme Court upheld in Free Speech Coalition v. Paxton. We cover that one separately in Texas Age Verification Law: Chapter 129B and FSC v. Paxton Explained. Chapter 509 and that chapter impose different duties on different sets of businesses, and the SCOPE Act's own age verification provision in section 509.057 is narrower still, triggered only by the one third threshold.

Section 230 and the Preemption Question the En Banc Court Inherits

Section 230(c)(1) of the Communications Decency Act, in the 2023 edition of the United States Code, reads: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The preemption force comes from subsection (e)(3), which provides that nothing in the section prevents a State from enforcing a consistent State law, but that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."

The vacated panel majority read Fifth Circuit precedent to bar claims stemming from a provider's publication of third party information, and treated monitoring, screening and deletion of content as quintessentially publisher conduct, drawing on Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) and the circuit's own Free Speech Coalition decision at 95 F.4th 263. Judge Ho read the same text as turning on the word "another," distinguishing publication of someone else's content from a platform's own curation of it. That disagreement over where Section 230 stops is now squarely before the full court, and the courts of appeals have been narrowing the provision from several directions, including a recent holding that Section 230 is a defense rather than an immunity from suit.

Where HB 18 Stands Right Now

The honest answer requires separating two questions that the vacatur runs together.

The panel's reasoning no longer binds. There is currently no Fifth Circuit holding on whether Section 230 preempts section 509.053, on whether the SEAT plaintiffs have standing, or on whether the SCOPE Act survives the First Amendment. Those questions are open in the circuit until the en banc court rules.

The district court's orders were not disturbed by this order. The October 28 order says nothing about the preliminary injunctions. Rule 41.3 vacates the panel's judgment along with its opinion and stays the mandate, so the panel's partial affirmance and partial vacatur never took effect below. On the face of the documents, what remains is the posture the district court created: the August 30, 2024 order enjoining the monitoring and filtering requirement in the CCIA case, and the February 7, 2025 order enjoining the monitoring and filtering, targeted ads, unlawful ads and age verification requirements in the SEAT case. Neither order reaches the age registration requirement in section 509.051; the SEAT court expressly denied relief as to it, and the CCIA injunction covered only the monitoring and filtering requirement. Neither order enjoins the parental tools duty in section 509.054 or the algorithm disclosure duty in section 509.056. The CCIA plaintiffs challenged all of HB 18 and the SEAT plaintiffs challenged further provisions as well, but the district court granted preliminary relief only as to the requirements named above and denied it as to the rest.

What the record we opened does not settle. We reviewed the en banc order, the vacated panel opinion and Rule 41.3. Those documents do not establish whether any separate stay, modification or clarification of the district court injunctions has been entered on the circuit or district docket, and they do not establish how the Attorney General's consumer protection division will exercise enforcement discretion while rehearing is pending. For any specific Chapter 509 provision, whether it is enforceable against a particular service today is therefore not resolved by these documents alone, and a provider should check the live dockets in 1:24-CV-849 and 1:24-CV-945 rather than rely on an appellate summary.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The procedural step is larger than it looks, for a reason that has nothing to do with how the en banc court eventually rules. Preemption arguments are supposed to be the quiet way out of a constitutional fight, and the panel used them that way: it resolved the CCIA appeal on Section 230 and said in terms that it would not reach the constitutional issues. Vacatur removes that off ramp. The en banc court inherits a case in which the First Amendment questions about state mandated filtering for minors, which the panel deliberately left untouched, are available again.

The second consequence is about who gets to bring these cases. The vacated opinion drew a sharp line between a regulated platform and an affected user, and would have required an unregulated plaintiff to show that platforms will predictably react in ways that suppress that plaintiff's own speech. Courts have generally been tightening indirect chill standing since Murthy v. Missouri, 603 U.S. 43 (2024), and the factors courts consider include whether the challenged law directly proscribes the plaintiff's conduct and whether any suppression has actually begun. If the full court adopts that framework, students and creators would need the platforms to litigate on their behalf; if it does not, the user side challenges survive alongside the trade association ones. Nothing in the current order indicates which way that goes.

Third, the circuits are moving on minors and social media at the same time, and not in unison. The Eleventh Circuit has twice disturbed district court injunctions in this space, in the Eleventh Circuit's vacatur of the Georgia SB 351 injunction and when it reversed a Florida district court on HB 3. The Fifth Circuit panel took a different route entirely, through Section 230 rather than the First Amendment. An en banc opinion that reaches the merits of either theory would be a significant data point for every state with a comparable statute, which is why the briefing schedule the Clerk has yet to issue is worth watching.

How This Affects You

For a service that may be a covered digital service provider in Texas, the practical point is that nothing about compliance obligations got clearer on October 28. The appellate landscape reverted to an unresolved state, and on the face of the documents we opened the operative constraints on enforcement are the district court orders rather than the appellate opinion that was published in July and is now vacated.

For a Texas parent or minor user, the parental tools duty in section 509.054 and the collection and use limits in section 509.052(1) were not part of either preliminary injunction, and neither preliminary injunction reaches the age registration requirement in section 509.051. The targeted advertising prohibition in section 509.052(2)(D) is a different matter: the Western District of Texas enjoined that requirement in the SEAT case on February 7, 2025. Chapter 509 gives a parent or guardian of an affected known minor a path to a declaratory judgment or an injunction under section 509.152(b), but no damages and no class action.

For anyone tracking the litigation, the next real events are the Clerk's supplemental briefing schedule and the setting of an oral argument date. The October 28, 2026 order states that both are still to come and sets neither.

This is general legal information, not legal advice. It covers a federal appellate order in the United States Court of Appeals for the Fifth Circuit and the Texas statute at issue, and reflects sources verified on October 29, 2026. Laws change and this story is developing; consult a lawyer licensed in your jurisdiction about your specific situation.

Related articles

• Age Verification Laws by State (2026): All 27 States and Court Status
• Texas Age Verification Law: Chapter 129B and FSC v. Paxton Explained
• Texas Data Privacy Laws: TDPSA and Consumer Rights Guide
• Eleventh Circuit Vacates Georgia SB 351 Social Media Injunction
• Ninth Circuit: Section 230 Is a Defense, Not Immunity From Suit

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Last updated: 2026-10-29. This is a developing story; details verified as of 2026-10-29.

Frequently Asked Questions

Did the Fifth Circuit strike down the Texas SCOPE Act?

No. The October 28, 2026 order decides nothing about the Act's validity. It grants rehearing en banc and vacates the July 24, 2026 panel opinion so the full court can hear the consolidated appeals in Nos. 24-50721 and 25-50096. The en banc court has issued no decision.

What does it mean that the panel opinion was vacated?

Under Fifth Circuit Rule 41.3, granting rehearing en banc vacates the panel opinion and judgment and stays the mandate. The opinion is withdrawn and binds no one, so its holding that Section 230 preempts the monitoring and filtering requirement is not circuit law. The rule also provides that if the court later lacks a quorum for 30 consecutive days the case returns to the panel and the opinion is reinstated only as unpublished and nonprecedential.

Is HB 18 enforceable in Texas right now?

In part, and the answer depends on the provision. The October 28 order does not address the district court's preliminary injunctions, and because the panel's judgment is vacated and the mandate stayed, the panel's disposition never took effect below. Neither preliminary injunction reaches the age registration requirement in section 509.051. The monitoring and filtering, targeted ads, unlawful ads and age verification requirements were enjoined by the Western District of Texas in orders dated August 30, 2024 and February 7, 2025. Whether any later stay or modification has issued is not resolved by the documents reviewed here, so a provider should check the live dockets in 1:24-CV-849 and 1:24-CV-945.

How will the en banc court rule?

That is unknown and we do not predict it. The order records only that a majority of the active, non disqualified judges voted to rehear the case; it gives no vote count and no indication of any judge's view of the merits. Supplemental briefs have been ordered and oral argument is to be scheduled on a date not yet fixed.

What is the difference between the SCOPE Act and the Texas age verification law the Supreme Court upheld?

They are separate statutes. HB 18 created Chapter 509 of the Business & Commerce Code and regulates social digital service providers, with duties covering minors' data, targeted advertising, filtering, parental tools and algorithms. The law upheld in Free Speech Coalition v. Paxton, 606 U.S. 461 (2025), concerned age verification for commercial sites distributing sexual material harmful to minors. Chapter 509 does contain its own narrow age verification duty in section 509.057, which applies only where more than one third of the material a provider publishes or distributes is harmful material or obscene under Texas law.

Who enforces the SCOPE Act?

Section 509.151 makes a violation of Chapter 509 a deceptive act or practice actionable solely as an enforcement action by the consumer protection division of the Texas Attorney General's office. Section 509.152 provides no general private right of action, but allows the parent or guardian of an affected known minor to seek a declaratory judgment under Chapter 37 of the Civil Practice and Remedies Code or an injunction, and prohibits certifying such an action as a class action.

Which judges are on the en banc court for this case?

The order's caption lists Chief Judge Elrod and Circuit Judges Jones, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas and Ramirez. Judge Higginbotham, who sat on the vacated panel, is not listed in the en banc caption.