The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on August 1, 2008:

• Rothgery v. Gillespie County Texas (King, Wiener, Owen, JJ.; per curiam opinion) (appeal from W.D. Tex.) (on remand from U.S. Supreme Court). Vacating district court’s opinion in light of Supreme Court decision that threshold issue of when Sixth Amendment rights are triggered had been incorrectly determined by the district court and the Fifth Circuit, and remanding for new determination of whether Sixth Amendment violation had occurred.
• Reliable Consultants Inc. v. Earle (Reavley, Barksdale, Prado, JJ.; per curiam opinion; dissenting opinion by Jones, C.J., joined by Jolly, Smith, Clement, Owen, JJ.; dissent by Garza, J.; dissent by Elrod, J.) (appeal from W.D. Tex.) (denying petition for en banc rehearing). The original panel opinion released February 12, 2008, reversed a judgment in favor of the state of Texas that upheld a statute prohibiting the promotion or sale of sexual devices, and found that the statute violated the Fourteenth Amendment of the U.S. Constitution. Texas, an intervenor in the lawsuit, petitioned for panel rehearing, and a member of the Fifth Circuit requested a poll of the active judges for en banc rehearing. Because a majority of the active judges did not vote in favor of rehearing the matter en banc, the original panel denied the petition for rehearing. Dissenting from the denial of rehearing, Judge Garza opined that Lawrence v. Texas, 539 U.S. 558 (2003), did not warrant the finding by the original panel that the Texas statute was unconstitutional; that the personal liberty interest announced in Lawrence for adults to engage in sexual practices consensually in the home was impermissibly extended by the panel into a commercial right to promote sexual devices. Judge Garza also criticized the approach taken by the Lawrence Court in failing to explicitly engage in the two-step substantive due process analysis set forth in Washington v. Glucksberg, 521 U.S. 702 (1997); and generally criticized “a line of cases through which the Court has constitutionalized certain unenumerated ‘rights’ and ‘liberty interests,’ without clearly articulating its constitutional authority to do so.” Slip op. at 13. Chief Judge Jones also dissented, agreeing with Judge Garza that Lawrence did not justify the panel opinion’s decision, but disagreed that it was necessary in dissenting to go further to criticizing Lawrence or other opinions of the Court. Judge Elrod dissented, agreeing with both Chief Judge Jones and Judge Garza, and opining that the panel opinion was an impermissible panel overturning of a prior panel opinion and that the panel should not have created a circuit split.