Travis County District Attorney José Garza says he no longer plans to prosecute conservative activist Michelle Evans, who posted a video to her X account of a man using the women’s bathroom at the Texas Capitol in 2023. However, the legal fight is not over yet.
Evans’ attorney is arguing that her First Amendment claims against Garza should proceed before the U.S. Fifth Circuit Court of Appeals.
The case gained national media attention after the legal team for Elon Musk’s X stepped in to support Evans’ defense in December, citing free speech concerns.
Background
In May 2023, Evans encountered a biological male, who claimed to be “transgender,” using the women’s restroom at the Texas Capitol when attending a debate over legislation to ban child gender mutilation.
A photo of the man—who calls himself Nova Martin—in the restroom was posted to Facebook by someone in Evans’ group, and she subsequently tweeted the same photo with a caption expressing her belief that the man should not have used the women’s restroom.
The tweet led to an investigation by the Department of Public Safety—prompted by District Attorney Garza—to determine if Evans’ actions violated Texas Penal Code § 21.15(b), which prohibits transmitting images of individuals in bathrooms or changing rooms without consent and with intent to invade privacy.
Evans filed a lawsuit, seeking a temporary restraining order and preliminary injunction in the United States District Court for the Western District of Texas. The suit aimed to prevent Garza from investigating or prosecuting her for disseminating the photograph.
She argued that the statute was unconstitutional both facially and as applied to her conduct, citing the First and Fourteenth Amendments.
The district court denied Evans’ request for a preliminary injunction, and she appealed to the Fifth Circuit Court of Appeals in New Orleans.
On appeal, the Fifth Circuit affirmed the district court’s ruling, denying an injunction. The court held that Evans had standing but agreed that she “failed to meet her burden to demonstrate a substantial likelihood of success on the merits or that the balance of harms justified injunctive relief.” The court concluded that the statute was not facially unconstitutional and that Evans had not shown it was unconstitutional as applied to her situation.
Evans filed a petition to have the case reheard en banc—meaning before all justices of the Fifth Circuit.
Garza Plans Not to Prosecute
In considering whether it would rehear Evans’ appeal, the Fifth Circuit needed to determine whether all of her claims were still live, because so much time had passed since the case’s initial filing. The court asked Garza whether he still intended to prosecute Evans.
Garza’s response letter stated that “at present, after further coordination with the victim and law enforcement, that office does not intend to prosecute the matter involving Plaintiff-Appellant.”
However, Gene Schaerr—Evans’ attorney—argues that Garza’s statement is not enough for Evans’ claims to be made moot, and that the Fifth Circuit should still rehear her appeal.
“To moot the case, District Attorney Garza carries the ‘formidable burden’ of making it ‘absolutely clear’ that the challenged conduct ‘could not reasonably be expected to recur,’” wrote Schaerr. “What Garza offers is that ‘at present,’ the office ‘does not intend to prosecute’ Evans.”
“The letter notably does not concede that Evans’ speech was lawful or offer any sort of binding promise that could be legally enforced. The threat to prosecute Evans remains live, the chilling of Evans’s current desire to republish her speech continues, and the claims are not moot,” he continued.
Schaerr added that Garza’s announcement came only in response to the court’s prodding, and that the Fifth Circuit has already noted its skepticism for changes first announced only in litigation.
“Because Garza’s letter lacks the absolute clarity required to render this case moot, the Court should proceed to the merits of Evans’s en banc petition,” he concluded.
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