United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED July 11, 2022 No. 20-40267 Lyle W. Cayce Clerk

George Lee Tucker, II,

Plaintiff—Appellant,

versus

Steve Gaddis,

Defendant—Appellee.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:14-CV-659

Before King, Graves, and Ho, Circuit Judges. Per Curiam: For years, the Texas Department of Criminal Justice (“TDCJ”) has denied prisoner requests to hold religious gatherings for the Nation of Gods and Earths (“the Nation”). Originally, Texas denied such requests on the ground that it perceived the Nation as a racial supremacy group, and that allowing such an assembly would pose a security threat to the prison. In response, Plaintiff George Lee Tucker II brought this suit against Steve Gaddis, TDCJ’s Deputy Director of Volunteer Services and Special Populations, in the hope of vindicating the rights of the Nation’s adherents Case: 20-40267 Document: 00516389535 Page: 2 Date Filed: 07/11/2022

No. 20-40267

to congregate. The suit was initially filed pro se over half a decade ago. But Tucker began receiving the aid of pro bono legal counsel a few years later. The State now says that it has promulgated a new policy to govern congregation requests on behalf of the Nation’s adherents. As a result, the State contends that this suit is now moot. We disagree. The new policy merely allows Tucker to apply for a congregation. It does not in fact allow the Nation to congregate. To the contrary, any such requests remain subject to “time, space, and safety concerns.” And to date, Texas has never permitted the Nation’s adherents to congregate. Nor is there any indication that Texas will allow them to do so anytime soon. So this case is not moot. Accordingly, we reverse. I.

Texas provides two types of communal religious services for inmates. It allows an hour of weekly “primary” religious services through a TDCJ chaplain for members of ten recognized religious groups—Catholicism, Non- Roman Catholic Christianity, Islam, Sabbatarianism, Judaism, Native Amer- ican religions, Neo-Paganism, Eastern Religion, Jehovah’s Witnesses, and Mormonism. In addition, adherents of these recognized religions can seek “secondary” services, led by an approved outside volunteer, subject to time, place, and security requirements as established by TDCJ’s Religious Prac- tices Committee. For adherents of other religions not recognized by TDCJ, however, no primary religious services are permitted. Inmates may only apply for sec- ondary services. But that is subject to the approval of the Committee and must be led by an outside volunteer director.

2 Case: 20-40267 Document: 00516389535 Page: 3 Date Filed: 07/11/2022

No. 20-40267

From 2007 to 2014, Texas categorized the Nation’s adherents as members of the Islamic faith. As a result, they had access to primary Islamic religious