Reported / Citable
Background
Michelle Evans posted on Twitter a photograph showing a transgender candidate for the Texas House of Representatives washing their hands in a women’s restroom at the Texas Capitol. The post accompanied Evans’s political criticism of the person’s use of that restroom.
Travis County District Attorney José Garza investigated whether Evans violated the version of Texas Penal Code § 21.15(b) then in effect, which made it a felony to transmit or promote a visual image of another person in a bathroom or changing room without consent and with intent to invade that person’s privacy. Evans was not prosecuted, but she sought a temporary restraining order and preliminary injunction barring investigation or prosecution, asserting facial and as-applied First and Fourteenth Amendment challenges. The district court denied relief, and a divided Fifth Circuit panel issued an opinion in 2025. Evans then petitioned for rehearing en banc.
The Court’s Holding
The Fifth Circuit denied rehearing en banc. At a judge’s request, the full court was polled, but only seven judges voted for rehearing while ten voted against it. The denial left the panel opinion intact.
Judge Richman concurred, reasoning that Evans was unlikely to succeed at the preliminary-injunction stage because Texas has a substantial interest in protecting privacy throughout public restrooms, including areas outside stalls, and because the statute required an intent to invade privacy. Judge Ho and Judge Oldham filed dissents contending that the panel opinion insufficiently protected political speech. Judge Oldham also emphasized that the district attorney had reported that the evidence was no longer retained, the limitations period had expired, and Evans’s phone would be released, but the panel opinion remained unvacated.
Key Takeaways
- The court’s operative ruling was procedural: it denied rehearing en banc because a majority of active judges did not vote for rehearing.
- The denial left standing the panel opinion concerning Evans’s request to enjoin enforcement of Texas’s invasive-visual-recording statute.
- The separate writings exposed a sharp disagreement over how restroom privacy interests should be balanced against First Amendment protection for politically expressive images.
Why It Matters
The order preserves the panel opinion as Fifth Circuit precedent without a new en banc merits decision. The separate opinions highlight an unresolved divide within the court over whether criminal restrictions on disseminating restroom images may constitutionally reach a fully clothed person in a common area when the image is used as part of political advocacy.