COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§ No. 08-23-00204-CR
EX PARTE: § Appeal from the
JOAN SEBASTIAN PEÑA-CORTES, § County Court
Appellant. § of Kinney County, Texas
§ (TC# 11945CR)
MEMORANDUM OPINION
Joan Sebastian Peña-Cortes (Peña-Cortes) is a noncitizen who was arrested under
Operation Lone Star (OLS) and charged with the misdemeanor offense of criminal trespass.
Following his arrest, Peña-Cortes filed a pretrial application for 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 habeas application. Peña-Cortes appealed, contending the trial court erred in not
granting his requested relief. Treating the appeal as a mandamus petition, we remand to the trial
court to give it the opportunity to reconsider its ruling in light of recent Fourth Court of Appeals’
precedent governing Peña-Cortes’s claims.
FACTUAL AND PROCEDURAL BACKGROUND
A. Peña-Cortes’s arrest and request for habeas relief
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 2023, pet. granted
Aug. 23, 2023). As part of OLS, Peña-Cortes, a noncitizen, was arrested for criminal trespass in
Kinney County on December 17, 2021. 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. Peña-Cortes
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.” The State did not file a response to the application. On June 14, 2023,
the trial court denied Peña-Cortes’s application without issuing the writ or holding an evidentiary
hearing. Peña-Cortes appealed. 1
B. Aparicio and its progeny
On June 21, 2023, the Fourth Court of Appeals issued Ex parte Aparicio, 672 S.W.3d 696.
In that case, a noncitizen (Aparicio), who had been arrested for criminal trespass in Maverick
1
The appeal was transferred to this Court 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 it conflicts with our
own. See TEX. R. APP. P. 41.3.
2
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. Id. 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 had engaged 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 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 715. 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)).
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).
3
On appeal, the State argued “‘the emergency situation on Texas’s southern border’ justifies
its discriminatory actions.” Id. at 716. 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 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, no pet. h.) (not designated for publication) 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
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, no pet. h.) (not designated for publication).
4
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 petitioner his requested relief and dismiss his criminal case. Id.
C. The issues before us
Here, the State does not deny Peña-Cortes 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 Peña-Cortes’s application, contending that a claim of
selective prosecution is not cognizable in an application for a pretrial writ of habeas corpus. We
reject that argument in light of Aparicio and turn to the question of whether we have jurisdiction
to hear Peña-Cortes’s appeal, and if not, whether we may treat his appeal as a petition for a writ of
mandamus. And if treated as a mandamus petition, we must determine how that petition should be
resolved.
PEÑA-CORTES’S CLAIMS ARE COGNIZABLE IN A PRETRIAL
WRIT OF HABEAS CORPUS
We start with the State’s argument that Peña-Cortes’s claim of selective prosecution was
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’ 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
5
was wrongly decided, and we should resolve the issue differently. We disagree on both fronts and
follow the on-point precedent of the Fourth Court of Appeals. See 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”); see
also 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 Peña-Cortes’s claim of selective prosecution is cognizable
in a pretrial writ of habeas corpus.
THE TRIAL COURT’S ORDER IS NOT APPEALABLE
We must next consider whether Peña-Cortes has a right to appeal the trial court’s order
denying his application for a writ of habeas corpus. We conclude he does not.
Whether a trial court’s order denying an application for a writ of habeas corpus is
appealable depends on whether the trial court ruled on the merits of the claim. An order denying
an application for a writ of habeas corpus is only appealable when the trial court either grants or
denies the relief requested in the application on its merits. See 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); see also In re Perez, No. 04-23-00294-CR, 2023 WL 5270488, at *2 (Tex. App.—
San Antonio Aug. 16, 2023, no pet.) (mem. op., not designated for publication) (per curiam)
(recognizing that an appeal is the proper remedy when a trial court denies an application for a writ
of habeas corpus on the merits) (citing Ex parte Sifuentes, 639 S.W.3d 842, 846 (Tex. App.—
6
San Antonio 2022, pet. ref’d) (“If the record shows that the trial court heard evidence and
addressed the merits, the result is appealable.”)).
In making a merits-based decision on an application for a writ of habeas corpus, a trial
court generally issues the writ then considers evidence to determine whether the applicant’s claims
have merit and whether the requested relief should be granted. See State v. Lara, 924 S.W.2d 198,
203 (Tex. App.—Corpus Christi 1996, no pet.) (citing Ex parte Noe, 646 S.W.2d 230, 231
(Tex. Crim. App. 1983)); see also TEX. CODE CRIM. PROC. ANN. art. 11.01 (“The writ of habeas
corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued
by a court or judge of competent jurisdiction, directed to any one having a person in his custody,
or under his restraint, commanding him to produce such person, at a time and place named in the
writ, and show why he is held in custody or under restraint.”). 5 Thus, when a trial court refuses to
issue a writ and does not issue a decision on the merits of the habeas claims, there is no right to
appeal. Ex parte Noe, 646 S.W.2d at 231 (citing Ex parte Moorehouse, 614 S.W.2d 450, 451
(Tex. Crim. App. 1981) (recognizing that there is “no appeal from a refusal to issue or grant a writ
of habeas corpus”)); see also In re Perez, 2023 WL 5270488, at *2 (recognizing same in the
context of an OLS challenge).
Despite the usual process, a court is not required to formally issue a writ before making a
merits-based decision on an application for a writ of habeas corpus. See Ex parte Villanueva, 252
S.W.3d at 395 (recognizing that even when the trial court has not formally issued a writ, if the
court rules on the merits, the trial court has “in effect, issued the writ”). And Peña-Cortes argues
5
An applicant accused of committing a misdemeanor offense who has not been convicted of the offense may apply
to the judge of the court in which the charge is pending. TEX. CODE CRIM. PROC. ANN. art. 11.09.
7
that in his case, the court made a merits-based ruling on his habeas claims when it stated his
application was “denied,” even though it did not formally issue a writ. We disagree.
The trial court’s order in Peña-Cortes’s case stated:
ON this day came on to be heard the Application for Pretrial Writ of Habeas Corpus
filed in the above entitled and number cause. The Court having considered same is
of the opinion same should be:
x the Application is denied without hearing and the writ is not issued
the Application is granted, and an in-person hearing will be held on
the Application is granted, and the merits will be heard by submission of
evidence . . .
Interpreting an order by the same trial court using virtually identical language in denying
habeas relief to an applicant’s challenge to his OLS prosecution, the Fourth Court of Appeals held
that the trial court did not consider the merits of the applicant’s habeas claims. 6 In re Martinez-
Jimenez, No. 04-23-00547-CR, 2023 WL 7005866, at *2 (Tex. App.—San Antonio Oct. 25, 2023,
no pet. h.) (mem. op., not designated for publication) (per curiam). And because the record did not
otherwise suggest the trial court considered the merits of the applicant’s habeas claims, the court
found the trial court’s decision was not merits-based. Id. at *2 (citing Ex parte Sanchez-Hernandez,
Nos. 13-22-00120-CR, 13-22-00121-CR, 2023 WL 3749555, at *2 (Tex. App.—Corpus Christi
June 1, 2023, no pet.) (mem. op., not designated for publication) (per curiam) (“We review the
entire appellate record to make the determination of whether a court’s denial is merit-based.”));
see also Ex parte Bowers, 36 S.W.3d 926, 927 (Tex. App.—Dallas 2001, pet. ref’d) (order and
record may be considered to determine whether order was on the merits).
6
In Martinez-Jimenez, the trial court’s order stated: “the Application is denied and the writ is not issued,” omitting
the term “without hearing.” In re Martinez-Jimenez, No. 04-23-00547-CR, 2023 WL 7005866, at *2 (Tex. App.—San
Antonio Oct. 25, 2023, no pet. h.) (mem. op., not designated for publication) (per curiam). We do not find this
distinction sufficient to alter our interpretation of the order, as the order in Peña-Cortes’s case was identical in all other
material respects. Id.
8
We similarly conclude that the order in Peña-Cortes’s case indicates the trial court did not
issue the writ, hold a hearing, or consider the evidence Peña-Cortes submitted in support of his
habeas application. And because we find nothing in the record to suggest that the trial court made
a merits-based decision, we conclude Peña-Cortes has no right to appeal the trial court’s order.
WE TREAT THE APPEAL AS A PETITION FOR A WRIT OF MANDAMUS
Peña-Cortes urges that if we do not have jurisdiction to hear his appeal, we should, in the
alternative, treat it as an original petition for a writ of mandamus. We agree.
An appellate court may, in certain circumstances, treat an interlocutory appeal as a petition
for writ of mandamus if requested to do so by the appellant. See CMH Homes v. Perez, 340 S.W.3d
444, 452–53 (Tex. 2011); see also Hodge v. Kraft, 490 S.W.3d 510, 517 n.2 (Tex. App.—
San Antonio 2015, no pet.) (“the party seeking appellate review must specifically request that its
appeal be treated as a mandamus petition”); In re Commitment of Renshaw, 672 S.W.3d 426, 427
(Tex. 2023), reh’g denied (Sept. 1, 2023) (recognizing that an appellate court may treat a petition
for a writ of habeas corpus as a petition for a writ of mandamus when the petitioner asks the court
to do so, and that appellate courts have broad original jurisdiction to issue writs of mandamus
pursuant to TEX. GOV’T CODE ANN. § 22.221(b)). It would be an unnecessary waste of judicial
resources and the parties’ time to require an appellant “to file a separate document with the title
‘petition for writ of mandamus’ listed on the cover where the party has expressly requested
mandamus treatment of its appeal in an uncertain legal environment.” CMH Homes, 340 S.W.3d
at 453 (citing Wagner & Brown, Ltd. v. Horwood, 53 S.W.3d 347, 351 (Tex. 2001) (rejecting an
“approach [that] catapults form over substance to deny appellate review on the merits”)). And the
State does not provide any reasons why we should not treat Peña-Cortes’s appeal as a petition for
a writ of mandamus in this instance. Accordingly, in the interest of judicial economy, we will treat
9
it as such. 7 Id.; see also Gruss v. Gallagher, Nos. 14-21-00178-CV, 14-21-00179-CV, and 14-21-
00180-CV, 2023 WL 1975016, at *14 (Tex. App.—Houston [14th Dist.] Feb. 14, 2023, no pet.)
(treating appeal as petition for a writ of mandamus where appellant expressly requested such relief
and it was in the interest of judicial economy to do so).
RESOLUTION OF THE MANDAMUS PETITION
Our final step in the analysis is to determine how to resolve the petition. In a similar
situation, an applicant brought an application for a pretrial writ of habeas corpus, challenging his
prosecution for criminal trespass under OLS on equal protection grounds. In re Martinez-Jimenez,
2023 WL 7005866, at *1. The trial court denied the application without issuing a writ and without
deciding the merits of his selective prosecution claim prior to the Aparicio decision. Id. at *1–2.
The applicant then filed an original petition for a writ of mandamus with the Fourth Court of
Appeals asking it to order the trial court to issue the habeas writ and address the merits of his
claims. Id.
In entertaining the petition, the Fourth Court of Appeals first noted that for “mandamus
relief to be available in a criminal case, a relator must show two things: (1) that he has no adequate
remedy at law, and (2) that what he seeks to compel is a ministerial act.” Id. at *1 (quoting
Bonilla, 424 S.W.3d at 533); see also State ex rel. Young v. Sixth Jud. Dist. Ct. of App. at
Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). The court found there
was no adequate remedy at law because the trial court did not rule on the merits of the relator’s
habeas claim, and as discussed above, he therefore had no right to appeal from the trial court’s
7
Under the circumstances of this case, we have jurisdiction to consider the mandamus as a transferee court. See
Government Code § 73.002(a) (“The court of appeals to which a case is transferred has jurisdiction of the case without
regard to the district in which the case originally was tried and to which it is returnable on appeal.”).
10
order denying his habeas application. 8 Id. at *2. The court further recognized that the ministerial-
act requirement “is satisfied if the relator can show a clear right to the relief sought, which is shown
when the facts and circumstances dictate but one rational decision under unequivocal, well-settled
. . ., and clearly controlling legal principles.” Id. at *1 (quoting Bonilla, 424 S.W.3d at 533)
(internal quotation marks omitted).
The court found it significant that the trial court issued its order declining to entertain the
writ before the Aparicio opinion was issued, and the relator’s claims were similar (if not identical)
to the claims made in Aparicio. Id. at *2 (citing Aparicio, 672 S.W.3d at 713). The court therefore
found it appropriate to give the trial court “the opportunity to reconsider its decision not to issue
the habeas writ, hold an evidentiary hearing, or rule on the merits of Relator’s application,” in light
of the holding in Aparicio. Id. (citing Ex parte Lizcano, No. WR-68,348-03, 2018 WL 2717035,
at *1 (Tex. Crim. App. June 6, 2018) (not designated for publication) (per curiam) (remanding
case to trial court, in light of new authority, “to allow it the opportunity to develop evidence, make
new or additional findings of fact and conclusions of law, and make a new recommendation” to
the Court of Criminal Appeals)); see also In re Van Waters & Rogers, Inc., 988 S.W.2d 740, 741
(Tex. 1998) (orig. proceeding) (per curiam) (denying mandamus relief to allow trial court to
reconsider decision in light of new precedent); In re Cent. Oregon Truck Co., Inc., 644 S.W.3d
668, 669 (Tex. 2022) (orig. proceeding) (per curiam) (same). And the court therefore denied the
relator’s petition for writ of mandamus without prejudice to his “seeking relief, if necessary, after
the trial court has had an opportunity to reconsider its ruling.” Id. at *3.
We rule the same here.
8
The court also held that the relator’s request for mandamus relief was not moot given that it did not grant the relief
requested in his mandamus petition, i.e., issue a writ and decide the claims in his habeas application on the merits. In
re Martinez-Jimenez, 2023 WL 7005866, at *1–2.
11
CONCLUSION
We remand to the trial court for it consider Peña-Cortes’s application for a pretrial writ of
habeas corpus on the merits in light of the Fourth Court of Appeals’ holding in Aparicio and its
progeny, and determine whether—at the time Peña-Cortes was arrested and charged with criminal
trespass—the State was applying the criminal trespass statute under Operation Lone Star in an
unconstitutional manner by selectively prosecuting males only without justification. 9
We deny the petition for writ of mandamus without prejudice to Peña-Cortes’s ability to
seek relief, if necessary, after the trial court has had an opportunity to reconsider its ruling.
LISA J. SOTO, Justice
November 30, 2023
Before, Palafox, and Soto, JJ., and Marion, C.J. (Ret.)
Marion, C.J. (Ret.), sitting by assignment
(Do Not Publish)
9
On remand, the trial court may only consider evidence of the State’s policy as it existed at the time of Peña-Cortes’s
arrest in determining whether his constitutional rights were violated, and not evidence that the State may have changed
its policy at a later date. See Ex parte Barahona-Gomez, No. 04-23-00230-CR, 2023 WL 6285324, at *2 (Tex. App.—
San Antonio Sept. 27, 2023, no pet. h.). An applicant who was arrested and charged with criminal trespass while the
discriminatory policy was in effect has already been treated “differently from similarly situated women on the basis
of his sex by arresting and charging him” with trespass. See Ex parte Aparicio, 672 S.W.3d 696, 715 (Tex. App.—
San Antonio 2023, pet. granted) (citing Gonzales v. Police Dep’t, 901 F.2d 758, 762 (9th Cir. 1990) (“Curative
measures simply do not tend to prove that a prior violation did not occur.”); Rich v. Martin Marietta Corp., 522 F.2d
333, 346 (10th Cir. 1975) (explaining that conduct after the filing of charges “does not constitute cogent evidence of
lack of prefiling discrimination” and if “taken into account at all, it might tend to show the existence of prior
discrimination and an effort to repair the harm after discovery”)).
12