COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ No. 08-23-00295-CR
EX PARTE: § Appeal from the
LUIS FERNANDO REYES-JUAREZ, § County Court
Appellant. § of Kinney County, Texas
§ (TC# 12856CR)
MEMORANDUM OPINION
Appellant Luis Fernando Reyes-Juarez (Reyes-Juarez) is a noncitizen who was arrested
under Operation Lone Star (OLS) and charged with the misdemeanor offense of criminal trespass.
Following his arrest, Reyes-Juarez filed an application for a pretrial writ of habeas corpus in which
he requested the issuance of a habeas writ, an evidentiary hearing, and a dismissal of the underlying
charge, contending he was the subject of selective prosecution in violation of state and federal
constitutional equal protection principles. Without issuing a writ or holding a hearing, the trial court
denied his application on the merits, and Reyes-Juarez appealed, contending the trial court erred in
not granting his requested relief. 1 Based on the reasoning below, we reverse and remand to the trial
court with instructions to enter an order dismissing Reyes-Juarez’s criminal case with prejudice.
1 The appeal was transferred from the Fourth Court of Appeals pursuant to a Texas Supreme Court docket equalization order. Accordingly, we apply the Fourth Court of Appeals’ precedent to the extent required by TEX. R. APP. P. 41.3. FACTUAL AND PROCEDURAL BACKGROUND
A. Reyes-Juarez’s arrest and application for a pretrial writ of habeas corpus
On March 6, 2021, Governor Greg Abbott directed the Texas Department of Public Safety to
initiate OLS “to deter[] illegal border crossing and . . . prevent criminal activity along the border.”
Ex parte Aparicio, 672 S.W.3d 696, 701 (Tex. App.—San Antonio Nov. 15, 2023, pet. granted). As
part of OLS, Reyes-Juarez, a noncitizen, was arrested for misdemeanor criminal trespass in Kinney
County on January 23, 2022. On July 21, 2023, he filed an application for a pretrial writ of habeas
corpus seeking dismissal of the criminal charge, arguing his rights had been violated under the United
States Constitution’s Equal Protection Clause and the Texas Constitution’s Equal Rights
Amendment, as the State was selectively prosecuting men, and not similarly situated women, for
criminal trespass as part of OLS. See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 3a. Reyes-
Juarez attached several exhibits supporting his claim that the State had a policy of arresting only
male noncitizens for criminal trespass while referring similarly situated female noncitizens to Border
Patrol. Among the exhibits was a Notice of Stipulation the State filed in another OLS case in which
it stipulated: “women are not prosecuted for trespass as part of Operation Lone Star, even when they
are found trespassing.” In addition, Reyes-Juarez relied on the Fourth Court of Appeals opinion in
Ex parte Aparicio, 672 S.W.3d 696, which was issued on June 21, 2023, the month before he filed
his writ application. As discussed in more detail below, the court in Aparicio found that another
male noncitizen who had been arrested for criminal trespass under OLS had set forth a prima facie
case of selective prosecution based on the State’s admitted policy of only arresting male noncitizens
who were found trespassing in border counties. Id. at 715.
In his application, Reyes-Juarez expressed his belief that over a year after his arrest, “Kinney
County has attempted to cure its unconstitutional OLS Criminal Trespass policy to selectively
2 prosecute men for criminal trespass.” In particular, he stated that he was aware of reports that “[o]n
February 27, 2023 . . . two woman [sic] were arrested and magistrated for Criminal Trespass in
Kinney County.” He argued, however, that “[w]hile this policy change may arguably cure future
unconstitutional discrimination, Kinney County has already treated Applicant differently from
‘similarly situated’ women at the time of his arrest,” and therefore, any such policy change did not
cure the constitutional violation in his case. Reyes-Juarez therefore argued that the State’s policy of
selectively prosecuting only men—as it existed at the time of his arrest—violated his equal
protection rights, as it had both a discriminatory intent and a discriminatory effect. He further argued
that the State could not meet its burden of justifying its discriminatory conduct, pointing out the
State’s claim that it only prosecuted men due to financial constraints—as it asserted in other OLS
cases—was deemed insufficient to meet this burden.
The State did not file a response to the application. On August 22, 2023, the trial court denied
Reyes-Juarez’s application. On appeal, Reyes-Juarez contends that the trial court erred in denying
his application. For the reasons set forth below, we agree.
B. Aparicio and its progeny
We start with a review of our sister court’s opinion in Aparicio. In that case, a noncitizen
(Aparicio), who had been arrested for criminal trespass in Maverick County as part of OLS, filed a
similar application for a pretrial writ of habeas corpus seeking dismissal of the charge against him,
making an identical claim that the State was selectively prosecuting men under OLS in violation of
his constitutional rights. Aparicio, 672 S.W.3d at 701. Unlike the present case, however, the trial
court in Aparicio issued the writ and held a full evidentiary hearing on the question of whether the
State was engaging in selective prosecution. Id. at 701–06. The trial court denied the writ on the
merits despite undisputed evidence that the State was criminally prosecuting only male noncitizens
3 for trespass under OLS, finding that Aparicio’s equal protection argument failed because the State
could prosecute women if it “chose to.” 2 Id. at 706.
The Fourth Court of Appeals disagreed, finding Aparicio met his initial burden of
establishing a prima facie case of selective prosecution, i.e., that “the prosecutorial policy had a
discriminatory effect and that it was motivated by a discriminatory purpose.” Id. at 713. The burden
then shifted to the State “to justify the discriminatory treatment.” Id. at 715 (citing Ex parte
Quintana, 346 S.W.3d 681, 685 (Tex. App.—El Paso 2009, pet. ref’d)). Aparicio’s federal equal
protection claim was subject to intermediate scrutiny; namely, the State had to demonstrate that its
“discriminatory classification is substantially related to an important governmental interest.” Id. at
708 (citing Clark v. Jeter, 486 U.S. 456, 461, (1988); Casarez v. State, 913 S.W.2d 468, 493
(Tex. Crim. App. 1994) (en banc) (op. on reh’g)). And Aparicio’s state-based equal rights claim was
subject to strict scrutiny; namely, the State had to demonstrate that its actions were “narrowly
tailored to serve a compelling governmental interest.” Id. at 716 (citing In re Dean, 393 S.W.3d 741,
749 (Tex. 2012)).
On appeal, the State argued “‘the emergency situation on Texas’s southern border’ justifies
its discriminatory actions.” Id. However, the court of appeals noted that the trial court never reached
the merits of that issue, as it determined Aparicio had not met his burden of establishing a prima
facie case of selective prosecution on the basis of sex. Id. The court therefore reversed the trial
court’s denial of Aparicio’s application for a writ of habeas corpus and remanded the matter to the
trial court to “determine whether the State’s discriminatory classification was justified” under both
2 In particular, the trial court heard evidence that “as part of OLS, 4,076 people had been arrested for misdemeanor offenses and not a single individual arrested was a woman.” Ex parte Aparicio, 672 S.W.3d 696, 714 (Tex. App.— San Antonio 2023, pet. granted).
4 constitutional claims. 3 Id.
The Fourth Court of Appeals has since decided several cases involving OLS prosecutions of
men. Recently, the court issued State v. Gomez, No. 04-22-00872-CR, 2023 WL 7552682
(Tex. App.—San Antonio Nov. 15, 2023, pet. filed) involving a similar claim of selective
prosecution on the basis of sex made in an application for a pretrial writ of habeas corpus by another
male noncitizen (Gomez) who had been arrested in Kinney County for criminal trespass as part of
OLS. In that case, the trial court issued the writ, held an evidentiary hearing, then granted the writ.
Id. at *1. The State appealed, conceding it had only arrested males at the border under OLS, but
arguing its discriminatory actions were justified based on: “(1) Governor Abbott’s Proclamation
declaring an emergency regarding border security; and (2) testimony that the counties implementing
OLS do not have sufficient facilities to hold women detainees.” 4 Id. at *5. The Fourth Court of
Appeals rejected the State’s argument, finding that although security at the border may be
considered a compelling interest, the State did not demonstrate its actions were narrowly tailored to
serve that interest. Id. The court noted OLS was a multi-billion-dollar operation, and the State did
not explain why it could not have allocated funds for a facility to hold women. Id. The court therefore
held that the trial court did not abuse its discretion in “concluding the State failed in its burden of
justifying its discriminatory conduct under strict scrutiny, as required by Texas’s Equal Rights
Amendment,” and it affirmed the decision to grant the applicant his requested relief and dismiss his
3 The State filed a petition for discretionary review of the Fourth Court of Appeals’ decision, which is currently pending. In the petition, the State argues the court erroneously concluded that Aparicio’s claim was cognizable in a pretrial writ of habeas corpus. 4 At the evidentiary hearing, Captain Joel Betancourt, who oversees the district in which participating OLS counties are located, testified that women were “always sent to immigration” because there was no “place to put them,” as “the local county jails have no capacity.” State v. Gomez, No. 04-22-00872-CR, 2023 WL 7552682, at *2 (Tex. App.—San Antonio Nov. 15, 2023, pet. filed).
5 criminal case. 5 Id.
In addition, the Fourth Court of Appeals recently held in two separate cases that a trial court
erred in denying an OLS defendant’s writ application where the State again failed to meet its burden
of establishing a justification for its gender discrimination despite having the opportunity to do so.
See Ex parte Vazquez-Bautista, No. 04-22-00630-CR, 2023 WL 8440339, at *3 (Tex. App.—
San Antonio Dec. 6, 2023, no pet. h.) (opinion on en banc reconsideration); Ex Parte Gonzalez-
Morales, No. 04-22-00629-CR, 2023 WL 8793121, at *3 (Tex. App.—San Antonio Dec. 20, 2023,
no pet. h.) (mem. op., not designated for publication).
C. The issues before us
In this case, the State does not deny that Reyes-Juarez was the subject of selective
prosecution, nor does it attempt to justify its discriminatory actions. The State’s only argument on
appeal is that the trial court lacked jurisdiction to hear Reyes-Juarez’s application, contending that
a claim of selective prosecution is not cognizable in a pretrial writ of habeas corpus. As explained
below, we reject that argument in light of Aparicio and must therefore consider the question of
whether we have jurisdiction to hear Reyes-Juarez’s appeal, and if so, how we resolve the merits of
his appeal.
REYES-JUAREZ’S CLAIMS ARE COGNIZABLE IN A PRETRIAL WRIT OF HABEAS CORPUS We start with the State’s argument that Reyes-Juarez’s claim of selective prosecution is not
cognizable in a pretrial writ of habeas corpus. The State argues “[n]ot only is there no legal authority
supporting the ruling, to grant such claims cognizability would cause cascading problems for Texas’
5 The Fourth Court has reached a similar result in several other cases. See, e.g., State v. Rodriguez Rodas, No. 04-22- 00885-CR, 2023 WL 8103194, at *2 (Tex. App.—San Antonio Nov. 22, 2023, no pet. h.) (mem. op., not designated for publication); State v. Garcia Compean, No. 04-22-00886-CR, 2023 WL 8104870, at *2 (Tex. App.—San Antonio Nov. 22, 2023, no pet. h.) (mem. op., not designated for publication).
6 Courts.” The State acknowledges, however, that the Fourth Court of Appeals rejected the same
argument in Aparicio. And the State offers no new authority; it simply contends Aparicio was
wrongly decided, and we should resolve the issue differently. As we stated in Ramos-Morales, we
disagree on both fronts and follow the on-point precedent of the Fourth Court of Appeals. Ex parte
Ramos-Morales, No. 08-23-00285-CR, 2023 WL 8813572 *3 (Tex. App.—El Paso Dec. 20, 2023,
no pet. h.); see also TEX. R. APP. P. 41.3 (a transferee court must follow the precedent of the transferor
court to the extent it conflicts with its own; in the opinion, the deciding court may indicate “whether
the outcome would have been different” had it “not been required to decide the case in accordance
with the transferor court’s precedent”); Brazos Elec. Power Coop., Inc. v. Texas Comm’n on Env’t
Quality, 576 S.W.3d 374, 382–83 n.6 (Tex. 2019) (an opinion issued by a transferor court remains
binding precedent even though the case is pending on rehearing).
Accordingly, we conclude that Reyes-Juarez’s claim of selective prosecution is cognizable
in a pretrial writ of habeas corpus.
THE TRIAL COURT’S ORDER IS APPEALABLE
We next consider whether Reyes-Juarez has a right to appeal the trial court’s order denying
his application for a writ of habeas corpus. We conclude he does.
As we recently explained in Ramos-Morales, a trial court’s order denying an application is
only appealable if the trial court either grants or denies the application on its merits. See Ex parte
Ramos-Morales, 2023 WL 8813572, at *4 (citing Ex parte Villanueva, 252 S.W.3d 391, 394
(Tex. Crim. App. 2008) (recognizing that except as provided by statute, only when “there is a ruling
on the merits of the claims may a losing party appeal” from the denial of a writ of habeas corpus)). In
a typical case, a trial court will issue the writ and hold an evidentiary hearing before ruling on the
merits, but it is not required to do so—other than in cases in which a defendant is contesting his
7 placement on community supervision. Id. at *5. A key distinction in determining whether a trial
court’s order is merits-based and therefore appealable is whether the record reflects that the trial
court denied the defendant’s writ application because it did not find sufficient cause to issue the
writ, or whether it reviewed the allegations in the writ and found there was not sufficient cause to
grant the relief requested therein. Id. (citing Ex parte Martell, 901 S.W.2d 754, 755 (Tex. App.—
San Antonio 1995, no writ) (a court’s “determination that there is not even sufficient cause to issue
the writ [] must be distinguished from a determination that there is not sufficient cause to grant the
relief requested”)); see also Maddox v. State, No. 08-01-00490-CR, 2002 WL 504971, at *2
(Tex. App.—El Paso Apr. 4, 2002, no pet.) (not designated for publication) (recognizing that if a
“trial court rules on the merits of the applicant’s claim but denies the requested relief, that is
appealable; conversely, if the trial court dismisses the writ application for some other reasons, such
as lack of jurisdiction, without reaching the merits, that order is not appealable”).
Here, the trial court used virtually identical language to the language used in the order in
Ramos-Morales, asserting that the court had reviewed the “allegations” in the writ application, and
that it was taking “Judicial Knowledge of the filings in this cause[.]” The court further stated that it
was not only denying Reyes-Juarez’s request for the issuance of a writ and a hearing, but that it was
also denying his “requested relief.” As we held in Ramos-Morales, such language demonstrates that
the trial court denied the writ on its merits, making it an appealable order. Ramos-Morales, 2023
WL 8813572, at *5; see also Ex parte Brooks, 97 S.W.3d 639, 640 (Tex. App.—Waco 2002, no
pet.) (mem. op.) (finding order denying writ application appealable where trial court stated it had
reviewed the defendant’s claims and found them to be without merit, and the defendant was
therefore not entitled to the relief requested); Ex Parte Gerardo Reyes Urbina Suarez, No. 06-23-
00214-CR, 2023 WL 8287582, at *1–2 (Tex. App.—Texarkana Dec. 1, 2023, no pet. h.) (mem. op.,
8 not designated for publication) (finding trial court’s use of similar language in order denying OLS
defendant’s application for a pretrial writ of habeas corpus to be merits-based, making the order
appealable)).
Accordingly, we conclude that we have jurisdiction to consider Reyes-Juarez’s appeal and
turn to the merits of his habeas claims.
STANDARD OF REVIEW
In reviewing the merits of a trial court’s decision to grant or deny habeas corpus relief, we
defer to the trial court’s assessment of the facts when those facts turn on an evaluation of credibility
and demeanor. Gomez, 2023 WL 7552682, at *4 (citing Ex parte Perusquia, 336 S.W.3d 270, 274–
75 (Tex. App.—San Antonio 2010, pet. ref’d); Ex parte Quintana, 346 S.W.3d 681, 684
(Tex. App.—El Paso 2009, pet. ref’d)). And we view the facts in the light most favorable to the trial
court’s ruling and will uphold it absent an abuse of discretion. Id.; see also Ex parte Trevino, 648
S.W.3d 435, 439 (Tex. App.—San Antonio 2021, no pet.) (recognizing that appellate court views
the facts in the light most favorable to the trial court’s ruling). Reviewing courts must also grant
deference to implicit findings of fact that support the trial court’s ultimate ruling. Ex parte
Perusquia, 336 S.W.3d at 275 (citing Ex parte Wheeler, 203 S.W.3d 317, 324 n.23 (Tex. Crim. App.
2006)). However, “[i]f the resolution of the ultimate question turns on an application of the law, we
review the determination de novo.” Id.; see also Vazquez-Bautista, 2023 WL 8440339, at *3
(recognizing same in context of an appeal from a trial court’s decision granting an OLS
applicant’s pretrial petition for a writ of habeas corpus). Here, we are able to resolve the appeal as a
matter of law.
WE REVERSE AND REMAND FOR DISMISSAL OF THE CHARGE
As we recently observed in Ramos-Morales, the “State’s judiciary has been inundated with
9 appeals from various trial courts’ rulings on applications for pretrial writs of habeas corpus from
OLS defendants.” Ramos-Morales, 2023 WL 8813572, at *6. And the Fourth Court of Appeals has
already determined, as a matter of law, that the State engaged in gender discrimination during the
same time period in which Reyes-Juarez was arrested by only prosecuting males for criminal
trespass at the border under OLS. Id. (citing Ex parte Aparicio, 672 S.W.3d at 715). There is nothing
in the record before us to suggest that the State’s discriminatory policy was not in effect at the time
Reyes-Juarez was arrested. And while the record reflects that the State (or at least Kinney County)
may have changed its discriminatory OLS policy in February of 2023—over a year after Reyes-Juarez
was arrested—the Fourth Court of Appeals has already recognized, as a matter of law, that any such
change has no bearing on a defendant’s selective prosecution claim, as the only evidence relevant
to an “applicant’s selective-prosecution claim is that which existed at the time of the applicant’s
arrest.” Id. (citing Ex parte Barahona-Gomez, 2023 WL 6285324, at *2). Accordingly, we conclude,
as a matter of law, that Reyes-Juarez met his initial burden of establishing a prima facie case of
selective prosecution, i.e., that “the prosecutorial policy had a discriminatory effect and that it was
motivated by a discriminatory purpose.” Aparicio, 672 S.W.3d at 715.
This leaves us with only the second prong in the analysis, i.e., whether the State has a
justification for its discriminatory policy. As set forth above, the Fourth Court of Appeals has
rejected various attempts by the State to justify its policy of gender discrimination during the same
relevant time period, finding that although security at the border may be considered a compelling
interest, the State failed to demonstrate that its actions were narrowly tailored to serve that interest.
See Gomez, 2023 WL 7552682 at *5; State v. Rodriguez Rodas, No. 04-22-00885-CR, 2023 WL
8103194, at *2 (Tex. App.—San Antonio Nov. 22, 2023, no pet. h.) (mem. op., not designated for
publication) (same); State v. Garcia Compean, No. 04-22-00886-CR, 2023 WL 8104870, at *2
10 (Tex. App.—San Antonio Nov. 22, 2023, no pet. h.) (mem. op., not designated for publication)
(same). And in at least two recent cases, the Fourth Court of Appeals has found it appropriate to reverse
the trial court’s orders denying OLS defendants’ applications for pretrial writs of habeas corpus and
remand with instructions to the trial court to dismiss the defendants’ criminal cases with prejudice—
without any further proceedings on the merits—where the trial court record reflected that the State
failed to meet its burden of establishing a justification for its policy of selective prosecution under
OLS. See Vazquez-Bautista, 2023 WL 8440339, at *6 (citing Aparicio, 672 S.W.3d at 711
(explaining that if applicant’s “selective-prosecution claim on the basis of equal protection has
merit, any conviction resulting from a trial would be void, and he would be entitled to release”); In
re Aiken Cnty., 725 F.3d 255, 264 n.7 (D.C. Cir. 2013) (“If the Executive selectively prosecutes
someone based on impermissible considerations, the equal protection remedy is to dismiss the
prosecution[.]”) (Kavanaugh, J.)); see also Gonzalez-Morales, 2023 WL 8793121, at *3 (same). We
recognize that in both of those cases, the trial courts held evidentiary hearings at which the State
had the opportunity to present its justification for its policy of selective prosecution, while no such
hearing was held in the present case. Nevertheless, as in Ramos-Morales, we conclude that the
proper remedy in this case is to reverse the trial court’s order denying Reyes-Juarez’s writ
application, without the necessity of remanding for any further proceedings on the merits of his
claims, and similarly direct the trial court to enter an order of dismissal. Id. at *7–8.
As we explained in Ramos-Morales, the sole purpose of an appeal from a trial court’s habeas
corpus ruling is to “do substantial justice to the parties,” and in resolving such an appeal, we may
“render whatever judgment . . . the nature of the case require[s].” Ramos-Morales, 2023 WL
8813572, at *7 (citing TEX. R. APP. P. 31.3 (in habeas appeals, an “appellate court will render
whatever judgment and make whatever orders the law and the nature of the case require”); TEX. R.
11 APP. P. 31.2 (in habeas appeals, “the sole purpose of the appeal is to do substantial justice to the
parties”); Ex Parte Salazar, 510 S.W.3d 619, 628 (Tex. App.—El Paso 2016, pet. ref’d)
(recognizing appellate court’s broad power under Rule 31.3 to render judgment in habeas appeals
as the nature of the case requires); Ex parte Williams, No. 05-21-00482-CR, 2021 WL 3941713, at
*1 (Tex. App.—Dallas Sept. 2, 2021, no pet.) (mem. op., not designated for publication) (“The sole
purpose of the appeal [in habeas cases] is to do substantial justice to the parties.”)). And under the
circumstances of this case, we do not believe it would do substantial justice to the parties to remand
for any further proceedings on the merits. As in Ramos-Morales, in the present case, the State did
not argue in the trial court or in its appellate briefing that it had any justification for its actions. Ramos-
Morales, 2023 WL 8813572, at *9. Similarly, it has not requested that we remand the matter to the
trial court for further proceedings to give it the opportunity to present evidence or arguments on the
issue. Instead, as set forth above, the State only argues that Reyes-Juarez’s habeas claims were not
cognizable in a pretrial writ application—an argument we have already rejected. And in its prayer for
relief, the State requests that we affirm the trial court’s order denying Reyes-Juarez’s writ application
solely on that basis.
Accordingly, because there is no dispute in the present case, either in the law or in the facts,
on the question of whether the State unjustifiably engaged in gender discrimination against Reyes-
Juarez, we conclude it would be an “exercise in futility” to remand for further proceedings on the
merits. Id. (citing N. Cypress Med. Ctr. Operating Co., Ltd. v. Aetna Life Ins. Co., 898 F.3d 461, 479–
80 (5th Cir. 2018) (where facts and law were well-settled, court recognized that it would be an
“exercise in futility” and “diminish judicial economy” to remand to the trial court for further
proceedings, where there was a “high likelihood” that the same issue would return to the court in a
subsequent appeal, thereby further prolonging the litigation unnecessarily)). As well, we find that
12 remanding to the trial court for additional proceedings on the merits would unnecessarily cause
further delays in resolving Reyes-Juarez’s habeas claims, which cuts against the principle that
habeas proceedings should be handled in an expedited manner. Id. (citing Ex parte Johnson, 876
S.W.2d 340, 343 (Tex. Crim. App. 1994) (finding it appropriate to issue a writ of habeas corpus,
without remanding to the trial court, by utilizing its habeas corpus jurisdiction and power to
“expedite a fair resolution of the unconstitutional situation the courts below have created for this
applicant”); TEX. R. APP. P. 31.2(b) (providing that an appeal in a habeas corpus proceeding other
than one challenging a defendant’s conviction or placement on community supervision, “shall be
submitted and heard at the earliest practicable time”).
CONCLUSION
The trial court erred, as a matter of law, in denying Reyes-Juarez’s application for a pretrial
writ of habeas corpus on the merits. Accordingly, we reverse the trial court’s order and remand to
the trial court to grant the writ and dismiss with prejudice the misdemeanor criminal trespass
charge against Reyes-Juarez.
LISA J. SOTO, Justice
January 12, 2024
Before Alley, C.J., Palafox, and Soto, JJ. Alley, C.J., concurring without written opinion