The U.S. Court of Appeals for the Fifth Circuit has set a tentative schedule to decide whether a judge’s order blocking the state’s controversial book rating law, HB 900, should stand. But an administrative stay issued last week by a separate motions panel of the Fifth Circuit remains in force—meaning that, despite being found unconstitutional, the law is now in effect, putting Texas booksellers in a precarious position.

In a filing this week, the plaintiffs (two Texas booksellers together with the American Booksellers Association, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund) filed their reply to the state’s emergency motion to have Judge Alan D. Albright’s September 18 injunction stayed. With that filing in, a motions panel of the Fifth Circuit now has enough to rule on the state’s emergency motion to stay the injunction. But it remains unclear how quickly the motions panel will rule on the state’s bid to stay the law, lawyers told PW, meaning that the administrative stay—which was issued without considering the merits—has effectively trumped the district court, allowing HB 900 to become law.

Administrative stays are usually brief, and are commonly used to maintain the status quo until an appellate court can more fully consider arguments for emergency relief.

The latest twist in the case comes after federal judge Alan D. Albright on September 18 issued a substantive 59-page written opinion and order officially blocking HB 900 from taking effect. The judge’s written decision came after he had orally enjoined the law at an August 31 hearing, following two previous hearings, and had denied the state's request for a stay.

Signed by Texas governor Greg Abbott on June 12, HB 900 requires book vendors, at their own expense, to review and rate books for sexual content under a vaguely articulated standard as a condition of doing business with Texas public schools. The law includes both the thousands of books previously sold to schools and any new books. Furthermore, the law gives the state the unchecked power to change the rating on any book, which vendors would then have to accept as their own or be barred from doing business with Texas public schools.

In their October 2 reply brief, the plaintiffs argued that the stay is causing irreparable harm to the plaintiffs and putting Texas booksellers in jeopardy. Furthermore, the plaintiffs argue allowing the injunction to take effect is the only way to maintain the status quo while the case is litigated, since the new law imposes enormous, unprecedented, and, according to the district court, unconstitutional burdens on the plaintiffs.

Staying the preliminary injunction would radically upend the status quo...

“Staying the preliminary injunction would radically upend the status quo,” the brief argues. “Plaintiffs would be immediately prohibited from selling books to public schools because they would be unable to review and rate every book ever sold to a public school, as required. To lift the prohibition, Plaintiffs would need to undertake the painstaking process of reviewing and rating hundreds of thousands of books, which would significantly disturb Plaintiffs’ businesses and cause economic injury, the reallocation of significant resources, and the potential closure of independent booksellers throughout Texas. A stay would also require public schools to change the way they store and purchase books and impact public school students’ access to books. Under the status quo as it exists now (and has existed for 170 years)—without Rating Provisions—none of these impingements are present.”

In a tweet, Texas state representative Jared Patterson, the primary author of HB 900, portrayed the administrative stay as a green light for the law. "After a foolish ruling by a confused Austin judge, HB 900 is back on the ‘books’ and moving forward," Patterson wrote on September 26.

Meanwhile, the court also set a preliminary schedule for the Fifth Circuit to hear the state’s appeal of Albright’s decision on the merits. Under the tentative schedule: the state is set to file its appeal brief by November 13; the plaintiffs’ reply is due on December 13; amicus briefs would be due December 20; and the state’s reply brief would be due January 10. Under that schedule, oral arguments would not be set until February at the earliest.

In his emphatic September 18 opinion and order blocking the law, Albright called HB 900 “a web of unconstitutionally vague requirements” that would “force private individuals and corporations into compliance" with an unconstitutional law.

“The government has the power to do the contextual ratings for the books itself. The government has the power to restrict the ability of its school district as to which books it may purchase. The exercise of these powers must, of course, comply with the requirements of the constitution, but these are powers that should be exercised by the state directly," Albright held. "Not by compelling third parties to perform it or risk losing any opportunity to engage in commerce with the school districts."