PD-0461-23 08/23/2023
“The Court of Appeals Erred in Holding That Appellant Raised a Cognizable Claim in a Pre-Trial Habeas Corpus Proceeding.”
GRANTED ON THE COURT'S OWN MOTION (1-17-24)
"Whether the Court of Appeals erred in reversing the trial court’s finding that Appellant failed to establish a prima facie case of selective prosecution on the basis of sex discrimination."
Aparicio was arrested for criminal trespass as part of Operation Lone Star. While the other adult men in the group he was with were also arrested, the women and a teenage male were not. By pretrial writ, he argued that the State was selectively prosecuting him on the basis of sex in violation of equal protection under the federal and state constitutions. The trial court held an evidentiary hearing (that included testimony about a lack of female detention facilities) and concluded that the State was not just singling out males and that the dire situation at the border satisfied both intermediate and strict scrutiny. More specifically, the court found that (1) women caught trespassing were not just being released; DPS was turning them over to border patrol, and (2) elderly men or men discovered in family units were also not being arrested.
Aparicio appealed. The court of appeals held that Aparicio’s claim was cognizable on a pretrial writ because his rights would be effectively undermined if not vindicated before trial and it would aid judicial efficiency to address it pretrial. It distinguished Aparicio’s claims from as-applied challenges to a statute, which are not cognizable. It then held that Aparicio had met his burden of establishing a prima facie case of gender discrimination. Because the trial court ruled that he had not, the court of appeals remanded for the trial court to consider the merits—whether the State could justify its conduct under the appropriate scrutiny standard.
The State argues that this is an as-applied equal protection claim, which is generally not cognizable, and does not fall within one of the narrow exceptions (for double jeopardy, bail, and elected officials engaged in official acts). It contends that the claim is unlike double jeopardy—the protection of which requires avoiding trial—and that it should not be enough that prosecution will be forbidden if the claim is established. It also questions whether judicial efficiency favors pretrial consideration (particularly as there is the potential for a large volume of similar claims). It suggests that a more complete record could be developed if the issue were addressed on appeal following conviction.
