The Fifth Circuit Court of Appeals denied both panel rehearing and en banc rehearing petitions in *Johnson v. Guerrero*, ending attempts by Texas Department of Criminal Justice Director Eric Guerrero to secure broader court review of an adverse ruling in a prisoner rights case.
The court issued a published order Jan. 12 rejecting the rehearing petition filed by Guerrero, who serves as director of the state prison system's Correctional Institutions Division. The three-judge panel that originally heard the case—Circuit Judges Leslie Southwick, Gregg Graves, and Patrick Higginson—denied the petition for panel rehearing under Fifth Circuit Rule 40.
More significantly, the court also denied the petition for en banc rehearing after polling its full membership. According to the order, seven judges voted in favor of rehearing while nine voted against it, falling short of the majority required under Federal Rule of Appellate Procedure 40 and Fifth Circuit Rule 40.
The judges who voted to grant en banc rehearing were Circuit Judges Edith Jones, Jerry Smith, Don Willett, James Ho, Stuart Duncan, Kurt Engelhardt, and Don Wilson. Those voting against included Chief Judge Priscilla Richman, along with Circuit Judges Rhesa Barksdale, Catharina Haynes, Leslie Southwick, Gregg Graves, Patrick Higginson, Jennifer Walker Elrod, Cory Wilson, Dana Douglas, and Irma Ramirez. Circuit Judge Andrew Oldham did not participate in the en banc consideration.
The case originated as *Johnson v. Guerrero* in the U.S. District Court for the Southern District of Texas under case number 4:19-CV-3047. Dexter Johnson, identified as the petitioner-appellee, prevailed in the lower court proceedings against Guerrero, who then appealed the decision to the Fifth Circuit as respondent-appellant.
While the published order does not detail the underlying dispute, the case structure indicates Johnson, likely an incarcerated individual, brought claims against the Texas prison director in his official capacity. Such cases typically involve allegations of constitutional violations related to prison conditions, medical care, or other aspects of incarceration.
The Fifth Circuit's decision to treat the en banc petition as both a panel rehearing request and an en banc petition follows standard appellate procedure. Under Fifth Circuit Internal Operating Procedure 40, the court routinely considers whether a case merits panel rehearing before addressing en banc review.
En banc review represents the most significant level of appellate scrutiny short of Supreme Court review. When granted, the full circuit court—rather than a three-judge panel—rehears a case, typically reserved for matters of exceptional importance or cases involving conflicts with prior circuit precedent.
The split vote among Fifth Circuit judges suggests the underlying issues generated substantial disagreement within the court. The seven-to-nine margin indicates nearly 44% of participating judges believed the case warranted full court review, a relatively high percentage that suggests significant judicial concern about the panel's decision.
Circuit Judges Jones and Smith, who voted for rehearing, are among the Fifth Circuit's most senior members and frequently advocate for conservative interpretations of constitutional law, particularly in cases involving criminal justice and prison administration. Their support for rehearing, along with Judges Willett, Ho, Duncan, Engelhardt, and Wilson, suggests the case may have involved issues important to the court's conservative wing.
Conversely, the majority coalition that denied rehearing included both conservative and moderate voices on the Fifth Circuit, suggesting the panel's original decision commanded broader support across ideological lines.
The case's progression through federal court began in 2019 when Johnson filed his initial complaint in the Southern District of Texas. The nearly seven-year litigation timeline reflects the complexity often associated with prisoner rights cases, which frequently involve extensive discovery, multiple motions, and appeals.
With the Fifth Circuit's denial of rehearing, Johnson's victory in the district court appears to stand, though Guerrero could potentially seek Supreme Court review through a petition for certiorari. However, the high court accepts only a small fraction of such petitions, particularly in cases involving prison administration disputes.
The Fifth Circuit's decision reflects broader tensions in federal courts over the scope of prisoner rights and the deference owed to prison administrators in managing correctional institutions. Courts must balance legitimate security and administrative concerns against constitutional protections for incarcerated individuals.
This case adds to a growing body of Fifth Circuit precedent addressing prisoner rights claims against Texas correctional officials. The Texas Department of Criminal Justice, one of the nation's largest prison systems, frequently faces federal litigation challenging various aspects of its operations.
The published nature of the rehearing order indicates the court views the procedural aspects as having precedential value, though the underlying merits of Johnson's claims remain sealed in the order itself. Legal practitioners and prisoner rights advocates will likely analyze the voting patterns for insights into how the Fifth Circuit approaches similar cases.