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Operation Lone Star and Equal Protection Habeas Claims
Fourth Court Update
By Justice Liza A. Rodriguez
As explained in a previous column, the Fourth Court has faced a tsunami of filings relating to Operation Lone Star (OLS), launched by Governor Abbott in March 2021 to “devote additional law enforcement resources toward deterring illegal border crossings.” Under OLS, “the primary felony arrest” is for “smuggling of persons,” but the “primary misdemeanor arrest” is for criminal trespass. Due to OLS, thousands of noncitizens have been arrested for criminal trespass in several counties within the Fourth Court’s jurisdiction, and many of those people have brought pretrial applications for writ of habeas corpus, alleging violations of their state and federal equal protection rights. See U.S. Const. amend. XIV; Tex. Const. art. I, § 3(a).
Recently, in Ex parte Aparicio, No. 0422-00623-CR, 2023 WL 4095939, at *1 (Tex. App.—San Antonio June 21, 2023, pet. granted)(en banc)(“Aparicio”), the Fourth Court addressed whether such a pretrial habeas claim was cognizable. In Aparicio, a noncitizen brought a pretrial selective prosecution claim, arguing that his state and federal equal protection rights had been violated by the decision to prosecute him for criminal trespass, but not to prosecute similarly situated women for the same offense. At the habeas hearing, the evidence showed that Aparicio was in a mixed group of men and women at the time of his arrest. While he and the other men in the group were arrested and transported to a detention facility, the women were not arrested and were released to federal authorities. At the time of the hearing, 470 men (but no women) had been arrested in Maverick County for misdemeanor offenses relating to OLS; and in the five counties participating in OLS at the time, 4,076 men (but no women) had been arrested for misdemeanor offenses. Further, at the hearing, a DPS captain testified that, under OLS policy, officers were instructed to arrest “the majority” of single adult males, but that the guidance to officers did not include arresting similarly situated women for criminal trespass. With regard to the human trafficking felony offense, though, both men and women were arrested and prosecuted. Other DPS troopers, including the trooper who arrested Aparicio, agreed with the captain’s testimony: they had been instructed to arrest men, but not women, for criminal trespass. Instead of arresting the women, they released them to federal border patrol authorities.
Despite the evidence, the trial court denied Aparicio’s requested relief. On appeal, in holding that Aparicio’s pretrial selective prosecution habeas claim was cognizable, the Fourth Court distinguished its opinion in Ex parte Dominguez Ortiz, 668 S.W.3d 126, 136-40 (Tex. App.—San Antonio 2023, no pet)(“Dominguez Ortiz”), which held that a pretrial habeas claim—based on alleged Fifth Amendment due process violations and a Sixth Amendment right to counsel claim—was not cognizable. Unlike Dominguez Ortiz, in which “important facts” had been “in dispute or undeveloped,” the record in Aparicio was fully developed and undisputed with regard to the practice of not arresting women for the offense of criminal trespass. Aparicio, 2023 WL 4095939, at *9 (quoting Dominguez Ortiz, 668 S.W.3d at 134).
Further, the Fourth Court found that Aparicio’s equal protection rights would be undermined if not vindicated before trial— observing that if Aparicio’s selective prosecution claim based on equal protection had merit, any conviction resulting from a trial would be void, and he would be entitled to release because “‘a conviction is void under the Equal Protection Cause[,] if the prosecutor deliberately charged the defendant on account of his race’ or other prohibited classification like gender.” Id. at *10 (quoting Vasquez v. Hillery, 474 U.S. 254, 264 (1986)). Likening Aparicio’s selective prosecution claim to a double jeopardy claim, the Fourth Court noted that when “a selective prosecution claim is established, prosecution itself is forbidden.” Id. Additionally, allowing pretrial writs on selective prosecution claims serves “judicial efficiency by avoiding entry of void judgments” and eliminating the need to develop a full trial record. Id. Since a habeas claim is not a defense on the merits to the criminal charge, but rather an independent assertion that the prosecution has brought the charge for constitutionally forbidden reasons, whether Aparicio was actually guilty of criminal trespass was irrelevant to his habeas claim; and because his selective prosecution claim was distinct from an as-applied challenge to a statute—which is not cognizable in a pretrial writ—the merits of Aparicio’s criminal prosecution were irrelevant to his selective prosecution claim. Id.
Finally, the Fourth Court found that Aparicio’s selective prosecution claim was similar to a facial vagueness statutory challenge, which is cognizable in a pretrial habeas writ, since a defendant bringing a vagueness challenge may argue that a statute’s vagueness impermissibly resulted in selective enforcement. Id. at *11. The Fourth Court found no “principled reason to deny pretrial habeas to an applicant like Aparicio who alleged actual selective enforcement of a statute under clear, but unconstitutional guidelines.” Id. (emphasis in original). Finally, the Fourth Court held that Aparicio’s selective prosecution claim based on equal protection was the type of claim in which “protection of the applicant’s substantive rights” or “conservation of judicial resources would be better served by interlocutory review.” Id. (quoting Ex parte Ingram, 533 S.W.3d 887, 891-92 (Tex. Crim. App. 2017)).
Because the Fourth Court’s district contains the counties most affected by OLS, and the strategies implemented by the Governor continue to evolve, so too will the legal issues faced by those affected. As OLS cases continue to mount, the Fourth Court will no doubt be faced with the challenge of addressing these vital issues of community concern.
