Background
Michelle Evans posted on Twitter a photograph taken by another person showing a transgender candidate for the Texas House of Representatives washing their hands in a women’s restroom at the Texas Capitol. Evans accompanied the photograph with political commentary. The Travis County District Attorney investigated whether the post violated the then-applicable version of Texas Penal Code § 21.15(b), which criminalized certain nonconsensual recording, transmission, or promotion of images of another person in a bathroom or changing room when done with intent to invade that person’s privacy.
Although Evans was not prosecuted, she sued District Attorney Jose Garza in his official capacity and sought a temporary restraining order and preliminary injunction against investigation or prosecution based on her past and intended future publication of the photograph. She asserted facial and as-applied First and Fourteenth Amendment challenges. The district court denied preliminary relief, and a divided Fifth Circuit panel affirmed. Evans then petitioned for rehearing en banc.
The Court’s Holding
The Fifth Circuit denied rehearing en banc after polling the court. Seven judges voted to rehear the case, while ten voted against rehearing. The order therefore left the panel decision intact; it did not issue a new merits ruling on Evans’s constitutional claims.
Judge Richman concurred in the denial, reasoning that Evans was unlikely to establish either facial invalidity or that the statute failed strict scrutiny as applied. She emphasized the state’s interest in protecting privacy throughout a public restroom, including areas outside stalls. Judge Ho dissented, arguing that applying the law to Evans’s political post violated the First Amendment. Judge Oldham, joined by Judges Jones, Willett, Ho, Duncan, and Engelhardt, also dissented, criticizing the threatened prosecution and noting the district attorney’s representation that the limitations period had expired, the evidence had not been retained, and Evans’s phone would be released.
Key Takeaways
- The Fifth Circuit denied rehearing en banc by a 10–7 vote, leaving the divided panel decision in place.
- The disposition itself did not resolve the merits anew; the competing constitutional analyses appear in the separate concurrence and dissents.
- The separate opinions sharply disagreed over whether Texas’s interest in restroom privacy could justify applying the statute to publication of a fully clothed person’s photograph accompanying political commentary.
Why It Matters
The denial preserves the panel ruling at the preliminary-injunction stage and leaves Evans without the requested order barring enforcement. It also leaves in place the panel’s treatment of the relationship between First Amendment protection for political imagery and a state’s asserted interest in preventing privacy-invasive restroom photography.
The close en banc vote and separate opinions show substantial disagreement within the Fifth Circuit over how that balance should be struck, particularly when the image depicts a fully clothed political candidate and is used as part of political advocacy.