Summary
The Fifth Circuit affirmed the denial of Michelle Evans’s motion for a preliminary injunction barring the Travis County District Attorney from investigating or prosecuting her under Texas Penal Code § 21.15(b)(2)–(3) for disseminating a photograph taken in a restroom. The court held that Evans had standing and that Younger abstention did not apply because no formal state criminal proceeding was pending. The majority concluded that Evans had not shown a substantial likelihood of success on her facial or as-applied constitutional challenges, while Judge Oldham dissented.
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Questions Presented
- Whether Evans had standing based on the threat of future prosecution.
- Whether Younger abstention applied where the State had begun an investigation but no formal criminal proceeding or charges were pending.
- Whether the district court abused its discretion in denying a preliminary injunction under the four-factor preliminary-injunction test.
- Whether Evans demonstrated a substantial likelihood of success on her facial or as-applied First Amendment challenges to Texas Penal Code § 21.15(b)(2)-(3).
Holdings
- Evans had standing because the threat of future prosecution was fairly traceable to the Travis County District Attorney and could be redressed by the requested preliminary injunction.
- Younger abstention did not apply because no formal criminal charges or ongoing state judicial proceeding existed against Evans; a state investigation alone was insufficient.
- The district court did not abuse its discretion in denying Evans's preliminary-injunction motion.
- Evans did not establish a substantial likelihood that Texas Penal Code § 21.15(b)(2) was facially invalid under the overbreadth doctrine.
- Evans failed to show a substantial likelihood that § 21.15(b)(2) was unconstitutional as applied to her publication of the photograph.
Key quotations
“In the case presently before us, there were no formal charges against Evans. So, we will not apply Younger abstention.” (at 4)
“A preliminary injunction is “an extraordinary remedy never awarded as of right.”” (at 6)
“On the record before us, we cannot conclude that the district court abused its discretion in denying the preliminary injunction.” (at 11)
“For the foregoing reasons, the district court’s judgment is AFFIRMED.” (at 12)
Factual background
During a 2023 Texas legislative debate, Michelle Evans tweeted a photograph of a transgender politician washing their hands in a women's restroom, accompanied by a caption criticizing the politician's restroom use. After the tweet generated controversy, the Texas Department of Public Safety questioned Evans and, at the request of the Travis County District Attorney, investigated whether her conduct violated Texas Penal Code § 21.15(b)(2)-(3), which criminalized transmitting or promoting a visual image of another in a bathroom or changing room without consent and with intent to invade privacy. No formal criminal charges had been filed when Evans sought federal injunctive relief.
Procedural history
After Evans tweeted a photograph taken in a women's restroom, the Travis County District Attorney requested an investigation into whether she violated Texas Penal Code § 21.15(b). Evans filed a federal action asserting facial and as-applied First and Fourteenth Amendment challenges and seeking emergency injunctive relief. The United States District Court for the Western District of Texas denied her motions, and the Fifth Circuit affirmed the denial of a preliminary injunction.