Summary
In Ex parte Aparicio, the Texas Court of Criminal Appeals discussed evidence introduced at the evidentiary hearing in that case, which also pertained to the administration of OLS cases in Kinney County.
Summary of this case from Ex parte Recendis-TrejoOpinion
PD-0461-23
10-09-2024
EX PARTE LUIS ALFREDO APARICIO, Appellant
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS MAVERICK COUNTY
RICHARDSON, J., delivered the opinion of the Court in which HERVEY, NEWELL, WALKER, and SLAUGHTER, J.J. joined. MCCLURE, J. concurred in the result. KELLER, P.J. filed a dissenting opinion in which KEEL, J. joined. YEARY, J. filed a dissenting opinion. KEEL, J. filed a dissenting opinion.
OPINION
RICHARDSON, J.
The Texas Department of Public Safety detained and arrested Appellant, Luis Alfredo Aparicio, for criminal trespassing as part of Operation Lone Star in Maverick County. Unlike Appellant, the two women in his group were not arrested but instead transferred to the custody of the U.S. Border Patrol. The question before this Court is whether Appellant's claim of selective arrest and prosecution based on his sex is cognizable under pretrial habeas proceedings. And if so, we must answer whether Appellant met the "demanding" burden in showing a prima facie case of selective enforcement or prosecution. We find that although Appellant's claim is cognizable on pretrial habeas, he failed to meet his burden in showing a prima facie case. For the reasons below, we reverse the court of appeals below and affirm the trial court's denial of relief.
Background
On March 6, 2021, Governor Greg Abbott directed the Texas Department of Public Safety (DPS) in collaboration with the Texas National Guard to initiate Operation Lone Star (OLS) to address the unprecedented influx of illegal border crossings from Mexico to Texas. According to the Governor's office, the purpose of OLS was to "combat the smuggling of people and drugs into Texas." OLS authorized the detention and arrest of individuals crossing the border illegally for state level offenses committed on or near the border. On March 17, 2021, only eleven days into the operation, OLS reported "apprehending" over 35,000 illegal migrants and seizing over 10,000 pounds of drugs crossing the border. By August 30, 2021, OLS expanded to cover 43 counties from the initial 28 counties on or near the border. Disaster declarations for these counties were issued by both the Governor and local county authorities as a means of increasing State resources. By June 24, 2022, Governor Abbott reported that OLS had succeeded thus far in turning back more than 22,000 unauthorized migrants from crossing the border, and made approximately 265,500 "apprehensions," approximately 16,400 criminal arrests, and roughly 13,800 felony charges. Only weeks later, Governor Abbott reported that OLS had "apprehended" 5,000 illegal migrants during the July 4, 2022 weekend alone.
(1 CR 21) ("Office of the Texas Governor, Press Release, Governor Abbott, DPS Launch 'Operation Lone Star' to Address Crisis at Southern Border").
Wayte v. United States, 470 U.S. 598, 608-10 (1985).
(1 CR 21).
Whren v. United States, 517 U.S. 806, 813 (1996) ("We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment."); cf. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999) ("[A]n alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.").
(1 CR 380).
Conley v. United States, 5 F.4th 781, 789 (7th Cir. 2021).
(1 CR 23) ("Office of the Texas Governor, Press Release, Governor Abbott Renews Border Crisis Disaster Declaration in 43 Counties").
Id. at 789, 797-98 (After the police engage in selective enforcement, "[i]t does not matter if prosecutors then pursue each case equally because the pool of defendants itself was racially selected.") (but rejecting selective-enforcement claim because purposeful discrimination was not shown).
(1 CR 23).
See United States v. Alcaraz-Arellano, 441 F.3d 1252, 1264-65 (10th Cir. 2006) ("To establish a discriminatory effect in a selective-prosecution race case, the claimant must show that similarly-situated individuals of a different race were not prosecuted. The elements are essentially the same for a selective-enforcement claim. . . . Mr. Alcaraz-Arellano's claims fail on the intent prong of the tests for dismissal and discovery.") (quotation marks, brackets, italics, and citation omitted; ellipsis inserted).
(1 CR 29).
United States v. Nichols, 512 F.3d 789, 794 (6th Cir. 2008).
On May 3, 2022, Appellant, Luis Alfredo Aparicio, was "apprehended" in Maverick County by DPS Troopers working as part of OLS. Appellant was spotted by OLS drone operators walking in the dark at 3:18 a.m. in the morning on private land surrounded by a high fence. He was in the company of two other adult males, a juvenile male, and two women. All six were detained but only the three adult males, including Appellant, were arrested for criminal trespass. Because the jails were unable to accept females or juveniles, the juvenile male and two women were transferred to the custody of U.S. Border Patrol.
(2 RR 71).
United States v. Williams, 431 F.3d 296, 299 (8th Cir. 2005) (addressing claim that a trooper engaged in racial profiling in making a traffic stop).
(1 CR 61-62).
United States v. Chavez, 281 F.3d 479, 486-87 (5th Cir. 2002) ("Neither the Supreme Court nor our Court has ruled that there is a suppression remedy for violations of the Fourteenth Amendment's Equal Protection Clause, and we do not find it necessary to reach that issue here. For even if we assume arguendo that the Fourteenth Amendment does provide such an exclusionary remedy, it is plain that Chavez has failed to offer proof of discriminatory purpose, a necessary predicate of an equal protection violation.").
(2 RR 72).
118 U.S. 356 (1886).
(2 RR 73).
See Frederick Douglass Found., Inc. v. District of Columbia, 82 F.4th 1122, 1144 (D.C. Cir. 2023); Conley, 5 F.4th at 789; Hassan v. City of New York, 804 F.3d 277, 294 (3d Cir. 2015). See also Nieves v. Bartlett, 587 U.S. 391, 414-15 (2019) (Gorsuch, J., dissenting); T.J. v. Rose, 635 F.Supp.3d 65, 70 (D.R.I. 2022); United States v. Mumphrey, 193 F.Supp.3d 1040, 1056, 1058 (N.D. Cal. 2016).
(2 RR 74-76).
On July 28, 2022, Appellant filed an application for pretrial writ of habeas corpus with the trial court. Appellant alleged that his arrest (and forthcoming prosecution) for criminal trespass was unconstitutionally selective under both the federal and state constitutions, and sought dismissal. Specifically, Appellant alleged that OLS engaged in prohibited sex discrimination because Appellant, along with the other two adult males in his group, were arrested and charged, while the two women in his group were transferred to the U.S. Border Patrol-who had the authority to refer the matter to the U.S. Attorney's Office for federal prosecution for crossing the border illegally.
(1 CR 4-16).
Id.
On August, 8, 2022, the trial court held a contested pretrial hearing to hear testimony and the arguments of the parties. During the hearing, the court heard testimony from numerous witnesses including a client advocate from the Lubbock Private Defender's Office, Appellant, DPS Captain Betancourt, the prosecutorial liaison for Maverick County, and four DPS Troopers working with OLS in a five-county area of the total 43 counties involved in OLS. Witnesses testified towards the following over the course of the hearing:
(2 RR 1).
517 U.S. 456, 461 (1996).
(2 RR 6-7, 27-28). These included the counties of Webb, Jim Hogg, Maverick, Kinney, and Valverde.
Id. at 465, 466.
- Governor Abbott had declared a state of disaster in the counties of Webb, Jim Hogg, Maverick, Kinney, and Valverde.
- OLS predominantly arrested suspects under two criminal offenses. The primary felony arrest was for "Smuggling of Persons," and the primary misdemeanor arrest was for "Criminal Trespass."
- Suspects arrested in connection with OLS (in the five-county area) were transported to a processing center in Valverde or Jim Hogg county (each servicing their respective areas). The processing centers were essentially a huge air-conditioned tent with holding cells that also housed areas for the booking process, medical process, and mental health screening.
- The Lubbock Private Defender's Office was awarded a grant from the Texas Indigent Defense Commission in order to appoint counsel for any defendant arrested under OLS who was found indigent in the above five counties.
- Anyone arrested under OLS would be prosecuted under the local district attorney. In Maverick County, OLS arrestees would be prosecuted under the local district attorney's office which had not set any prohibitions against arresting or prosecuting females.
- On August 5, 2022, the Lubbock Private Defender's Office ran a report on their case management system in the five-county area. While it found women being arrested for felonies in connection with OLS, it found zero women arrested for criminal trespass out of 4,076 cases.
- The processing centers were not able to house female detainees because they were subject to the policies and procedures required for county jails and could not meet the requirements for housing them. Some of these requirements covered rules regarding the actual structure itself, the
security for monitoring prisoners at the cells, monitoring meals, and segregation of the sexes and for juveniles.
- Sometime after processing, detainees would ultimately be moved to two former prisons (Brisco or Segovia units). These former prisons (originally intended to house males only) had undergone various measures of transformation (including the installation of air-conditioning) to convert them into acceptable pretrial detention facilities.
- On August, 12, 2021, DPS Captain Betancourt, emailed members of his team involved in OLS with evolving guidelines based on jail capacities and capabilities. The email was titled "Guidance on arrests for Criminal Trespass." There he directed the following:
We will continue to arrest those immigrants who are trespassing on private property (Only in Val Verde and Kinney County) where the landowner has agreed to file a complaint or agreed to have us sign them on their behalf. The criteria has been expanded to include the majority of single adult males" if they were trespassing on private property. While it would be difficult to cover every single scenario, below are some examples:
Father, Mother, and Child under 18 - Family Unit. Release to BP [Border Patrol].
Father, Mother, and Child over 18 and are trespassing-Male father will be arrested. Mom and adult child will be released to BP.
Uncle and adult nephew and are criminal trespassing-Arrest both.
Uncle and child nephew-Family Unit, refer to BP.
The basic common denominators are:
If there is a child who is part of a family. We will refer to BP
If the family consists of male adults (18 and over) we will arrest, if they are trespassing.
- In another email, Betancourt also explicitly excluded males that were "60-plus or injured."
- Captain Betancourt did not make any note regarding single adult females found trespassing. However, among the examples he provided, anyone excluded was to be referred to border patrol.
- For the felony offense of "human smuggling," both men and women were targeted for arrest.
- Four DPS troopers involved in OLS but operating in different areas of the five-county region testified to various apprehensions of mixed groups (including Appellant's group). While they all testified that the processing
center and the jails were not taking females for criminal trespass, some of them called ahead to confirm prior to referring females to border patrol while others did not. Moreover, at least one county in the five-county area did not have a local jail.
- All of the troopers testified that they did not arrest any of the females for criminal trespass because they understood that the jails and processing center would not accept them.
- One DPS trooper testified that the groups illegally crossing the border were predominantly men.
(2 RR 28). The trial court judicially noticed that Kinney County does not have a functioning jail for pretrial detentions. (2 RR 91-92).
Id. at 461 n.2.
(2 RR 7, 27).
Rose, 635 F.Supp.3d at 70. See also id. at 70-71 (discussing Mumphrey, cited supra at n.10, as also advocating dismissal as a remedy). The Court claims I "selectively" quote from Rose, but I make it clear that the federal district court in that case advocated for dismissal as a remedy. And as for the Court's reliance on Rose, the federal district court in that case claimed that the "strong weight of authority" supported dismissal as a remedy, but this supposed strong weight of authority consisted of another federal district court decision, cases from the Seventh and Tenth Circuits, and the Supreme Court's decision in Yick Wo. See id. My earlier discussion of federal decisions shows that the federal district court's assertion is inaccurate. Given that the court in Rose was a trial court, its opinion regarding the "strength" of the authority in favor of its position is of little, if any, persuasive value. The point I am making is that the issue is unsettled, which even the court in Rose grudgingly acknowledged.
(2 RR 40-41).
United States v. Crews, 445 U.S. 463, 474 (1980).
(2 RR 6).
Imbler v. Pachtman, 424 U.S. 409, 427 (1976); Conley, 5 F.4th at 793.
(2 RR 17, 42-43).
Conley, supra at 793-94 (citing Kalina v. Fletcher, 522 U.S. 118, 126 (1997), and Taylor v. Ways, 999 F.3d 478, 490 (7th Cir. 2021)) ("And in such a case, qualified immunity would likely not protect the police because the plaintiff has already proven racial animus. . . . 'Any reasonable official . . . would have known that intentional racial discrimination . . . was unconstitutional.'") (first ellipsis inserted, second and third ellipses in Conley, citation omitted).
(2 RR 10-13).
Ex parte Couch, 678 S.W.3d 1, 4 (Tex. Crim. App. 2023).
(2 RR 41-42). Part 9 of the Texas Administrative Code (titled "Texas Commission on Jail Standards") provides the statutory requirements that all county pretrial detention and jail facilities must comply with at the bare minimum. Tex. Admin Code ch. 251-301. These statutory requirements include rules on the jail construction and facility design, "life safety rules," housing scheme requirements, staffing requirements, rules on the supervision of inmates, admission and bonding processes, health services, sanitation plan requirements, food services, and access to legal services. Id. Incorporated within the interaction of the above requirements, Section 260.112 requires the facility design itself to provide male/female segregation with "[a]dditional segregation . . . provided for offenders of different risk/needs classifications." Part 11 of the Texas Administrative Code (titled "Texas Juvenile Justice Department") also provides, in a completely separate statutory scheme, the requirements for housing detained juveniles. Tex. Admin Code ch. 341-385. These requirements diverge from those used to house adult pretrial detainees.
Ex parte Perry, 483 S.W.3d 884, 896 (Tex. Crim. App. 2016) (plurality op.).
(2 RR 45-46).
431 U.S. 651 (1977).
Under 8 U.S.C. § 1325, crossing the border illegally is a federal misdemeanor to which U.S. Border Patrol has federal authority to enforce by arrest under 8 U.S.C. § 1357.
Perry, 483 S.W.3d at 896.
Exh. 13. It is unclear what effect the guidance email had in Maverick County given that the email by its language applies to only Val Verde and Kinney counties. According to the DPS liaison to Maverick County, the guidance email was forwarded verbatim to troopers working in the Maverick County area once the county became involved in OLS. (2 RR 81). The liaison testified that she thought it was a directive. However, the testifying troopers who made arrests in Maverick County all consistently testified that their decisions not to arrest females for criminal trespassing were made because neither the Maverick County Jail nor the regional processing center would accept them. (2 RR 51-54, 57-58, 74-75). One trooper further denied that his decision was based on any policy because he was unaware of any policy in place for OLS arrests in Maverick County. (2 RR 54).
United States v. Hollywood Motor Car Co., 458 U.S. 263, 267-70 (1982) ("Even when the vindication of the defendant's rights requires dismissal of charges altogether, the conditions justifying an interlocutory appeal are not necessarily satisfied. . . . It is only a narrow group of claims which meet the test of being "effectively unreviewable on appeal from a final judgment," and the claim of prosecutorial vindictiveness is, we hold, not one of them.").
Exh. 13; (2 RR 80).
United States v. Sasway, 686 F.2d 748 (9th Cir. 1982) (noting "the lack of 'substantive difference' between vindictive and selective-prosecution claims" and holding that Hollywood Motor Car Co. required the interlocutory appeal involving a selective-prosecution claim to be dismissed).
(2 RR 36).
Jarkesy v. SEC, 803 F.3d 9, 26 (D.C. Cir. 2015) (The "general rule against interlocutory appeals encompasses selective-prosecution claims, which bear a close resemblance to Jarkesy's class-of-one equal protection challenge."); Claiborne v. United States, 465 U.S. 1305, 1306 (1984) (Rehnquist, J., sitting as circuit judge) (denying a stay because the claim appeared "to be a species of 'vindictive' or 'selective' prosecution," and Hollywood Motor Car Co. would bar an interlocutory appeal); United States v. Bird, 709 F.2d 388 (5th Cir. 1983) (noting that "the lower federal courts have also found nonappealable under the collateral order doctrine denials of motions to dismiss based on selective prosecution").
(2 RR 47-77); see also (2 RR 76) ("It's based on the fact that the jail will not allow me to arrest the females. If they did, they would be arrested every single time.").
Hollywood Motor Car Co., 458 U.S. at 267 (quoting United States v. MacDonald, 435 U.S. 850, 860-61 (1978)).
(2 RR 75). This observation is consistent with eight "mixed-sex" groups provided as comparative samples in Appellant's pretrial habeas brief. The eight groups were collectively composed of 26 adult men compared to only 11 adult women. (1 CR 6-7). Similarly, the "similarly situated" mixed-sex groups (including Appellant's group) that the four Troopers testified to were collectively composed of 20 adult males compared to 7 adult females. (2 RR 51-52, 57-58, 61, 72).
Id.
At the conclusion of testimony, the trial court made the following observation regarding Appellant's arguments that women were selectively favored over men:
The Court: Tell me this, you tried to give [sic] a couple of these young troopers to say something that wasn't true.
When they turn these people over to immigration, they are in custody. They are not free to go. They are then deported or God knows what else they do.
But I mean, face it, you've got, last I heard, over three million people in the last year and half have been coming across our borders illegally and being sent off all over the country.
They think there is about 900,000 that got away that weren't, you know, turning themselves in. And you are concerned about - how many women were not prosecuted?
(2 RR 97).
See Ex parte Doster, 303 S.W.3d 720, 727 (Tex. Crim. App. 2010).
Following closing arguments, the trial court further observed that while adult women appeared to be benefiting from the OLS arrest guidance by not being formally arrested and charged with trespass, so were certain classes of adult men. Based on this finding, the trial court concluded that there was no sex discrimination and denied both Appellant's pretrial writ and motion to dismiss.
(2 RR 108).
(2 RR 108, 111-13).
On Appeal at the Intermediate Appellate Court sitting en banc.
On appeal, the State first asserted that Appellant's claim of selective enforcement and prosecution was not cognizable on pretrial habeas. Further, the State asserted that even if it were, Appellant failed to meet his burden in showing his arrest (and other arrested adult males) was motivated by impermissible gender discrimination. The State instead argued that "this case is not about gender discrimination, but common sense logistics during a declared emergency."
State's Br.at the Fourth Court of Appeals at *9.
In response, Appellant maintained that his claim of sex discrimination was cognizable on appeal and that he met his burden in proving a discriminatory intent. In other words, Appellant was targeted and arrested because of, at least in part, his gender while women were not. Accordingly, Appellant argued, that OLS's policy should be subjected to strict scrutiny and Appellant's prosecution should be dismissed.
App. Br. at the Fourth Court of Appeals at *19.
Id. at *33.
The Fourth Court of Appeals sitting en banc first held that although there was no precedent directly on point, Appellant's claim was cognizable on pretrial habeas writ. According to the court of appeals, the record below was fully developed and that Appellant's right to equal protection would be undermined if not vindicated before trial, and addressing the matter pretrial would further judicial efficiency concerns by eliminating the entry of void judgments.
Ex parte Aparicio, 672 S.W.3d 696, 711-13 (Tex. App.-San Antonio 2023, pet. granted) (en banc).
On the merits of Appellant's claim of selective prosecution, the appellate court found that Appellant had met his burden in demonstrating a prima facie case that "his gender was a motivating factor in his arrest." Reversing the trial court's ruling, the Fourth Court then remanded the case to allow the State the opportunity to rebut the presumptive finding of sex discrimination under the strict scrutiny standard required under Texas law.
The Fourth Court of Appeals addressed Appellant's claim as a claim of selective prosecution. Id. at 707.
Id. at 714.
Id. at 716; see Bell v. Low Income Women of Texas, 95 S.W.3d 253, 257 (Tex. 2002) (applying strict scrutiny to a state policy where equal treatment was denied "because of a person's membership in a protected class").
On discretionary review, the State only challenges the Fourth Court's holding that Appellant's claim is cognizable. Since this ruling, however, numerous cases have been appealed by similarly situated defendants across the border region resulting in a backlog of cases. To enable a complete appellate review and alleviate this backlog, this Court on its own motion granted review on the merits if the Court found the challenge cognizable. After receiving supplemental briefing from the parties, we now review Appellant's case.
See e.g., Ex parte Campos, No. 06-24-00039-CR, at *7 (Tex. App.-Texarkana April 16, 2024) (mem. op., not designated for publication) (deciding the case under the Fourth Court of Appeals' precedent Ex parte Aparicio after being transferred pursuant to docket equalization efforts: "While the outcome of this case would have been entirely different had we not been required to decide this case in accordance with another district's precedent, faithful application of Rule 41.3 of the Texas Rules of Appellate Procedure requires us to reverse the trial court's order and remand this cause to the trial court for further proceedings consistent with this opinion.").
The Nature of Appellant's Claim
We note that Appellant is contending that "the State's policy of arresting and prosecuting men but not women for trespass" violates Equal Protection principles.Appellant, along with the State, the trial court, the Fourth Court of Appeals, and even this Court in a prior order have repeatedly referred to the claim as a claim of selective prosecution. The dissenting opinions now seek to relabel Appellant's claim as solely one of selective law enforcement with no prosecution component-though no party has made any claim to that effect. Additionally, the dissents seek to distinguish between the selective enforcement and the selective prosecution and treat them differently based on the assertion that enforcement claims do not require dismissal. In support, one of the dissenting opinions selectively quotes from a federal district court case out of the District of Rhode Island.However, the text immediately after that quote contradicts their position and states the following:
App. Br. at the Fourth Court of Appeals at *8 (emphasis added).
The briefs from all parties, by our count, use the phrase "selective prosecution" 114 times while using the phrase "selective enforcement" or "selective enforcement of the law" 9 times in the interchangeable context.
Conc. Op., at *5 (Keller, P.J.) (discussing and quoting T.J. by and through Johnson v. Rose, 635 F.Supp.3d 70 (D. R.I. 2022) (mem. op.)).
That said, the strong weight of authority suggests that a successful selective enforcement also requires dismissal. See [United States v. Mumphrey, 193 F.Supp.3d 1040,] 1055-59 (surveying cases, following the Seventh and Tenth Circuits in holding that a selective enforcement claim requires dismissal); see also Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (requiring discharge of imprisoned petitioners where "public authorities charged with [ordinance] administration," who were not prosecutors, applied the law "with an evil eye and an unequal hand"). In general, this Court agrees that:
It is difficult to discern why selective prosecution warrants dismissal, but selective enforcement (upon which prosecution is necessarily predicated) would not. Racially selective action by law enforcement inflicts harm whether it is perpetrated by law enforcement in the streets or by a prosecutor in an office- both inflict substantial injury on the victim and society: In addition to violating the victim's rights to equality and liberty, such discriminatory conduct impugns the integrity of the criminal justice system and compromises public confidence therein.
T.J. by and through Johnson v. Rose, 635 F.Supp.3d 70 (D. R.I. 2022) (mem. op.) (quoting Mumphrey, 193 F.Supp.3d at 1055). The concurring opinion's reliance on United States v. Nichols, 512 F.3d 789 (6th Cir. 2008) is misguided because it ignores the context of the court's hypothetical musings. There, the Sixth Circuit was rejecting the Appellant's proposition that Fourth Amendment suppression was the appropriate remedy for a successful Equal Protections claim. Nichols, 512 F.3d at 794 ("Indeed, we are aware of no court that has ever applied the exclusionary rule for a violation of the Fourteenth Amendment's Equal Protection Clause.").
Moreover, relabeling these claims as only "selective enforcement" would be disingenuous to do so given the history of this case. Not only has the claim been referred to as "selective prosecution" during the entire pendency of the case stretching from the trial court to this Court, the prosecutor has also taken an active role in defending the matter all the way to this Court as well. And because prosecutors also bear discretion in deciding which cases to prosecute, we cannot ignore their knowing adoption of all that happened before for the purposes of this claim. When asked by the trial judge on whether the prosecution would exert any prosecutorial limitations on DPS, the Maverick County Attorney himself responded: "If it comes into my office, I will prosecute them."
Although DPS has the discretion to arrest, they must defer to the local district attorney's prosecutorial discretion in each county or district. State v. Zurawski, No. 23-0629, 2024 WL 2787913, at *6 (Tex. May 31, 2024) (citing State v. Stephens, 663 S.W.3d 45, 47, 52 (Tex. Crim. App. 2021)).
(2 RR 106).
Nevertheless, both selective prosecution and selective enforcement claims use the same Equal Protections standards derived from the same line of Supreme Court precedents. Furthermore, both types of claims, often used interchangeably in federal courts, invoke the same analysis since they both impose the same sets of presumptions and burdens on the litigants. And so long as they satisfy the same requirements for cognizability, we risk being legally arbitrary and unjustifiably selective ourselves in finding only one cognizable but not the other. Therefore, for the purposes of this opinion, we shall treat both types of claims involving the "collision between equal protection principles and the criminal justice system" as the same. With this in mind, we now turn to the question of whether these claims are cognizable.
United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017) ("[C]laims of selective prosecution and selective enforcement are generally evaluated under the same two-part test, which is derived from a line of seminal Supreme Court cases about the collision between equal protection principles and the criminal justice system.") (citing Whren v. United States, 517 U.S. 806, 813 (1996); Wayte, 470 U.S. at 608))); United States v. Mason, 774 F.3d 824, 829 (4th Cir. 2014) ("This court has adopted the standard the Supreme Court has set forth in United States v. Armstrong, 517 U.S. 456, (1996), for cases of racially animated law enforcement. . . . A selective law enforcement claim 'asks a court to exercise judicial power over a special province of the Executive.' In light of the 'great danger of unnecessarily impairing the performance of a core executive constitutional function,' petitioners must demonstrate 'clear evidence' of racially animated selective law enforcement." (internal citations omitted)); Bryan v. City of Madison, 213 F.3d 267, 277 (5th Cir. 2000) ("But to successfully bring a selective prosecution or enforcement claim, a plaintiff must prove that the government official's acts were motivated by improper considerations, such as race, religion, . . . ."); Farm Labor Organizing Committee v. Ohio State Hwy. Patrol, 308 F.3d 523, 534 (6th Cir. 2002) ("The Supreme Court has explained that a claimant alleging selective enforcement of facially neutral criminal laws must demonstrate that the challenged law enforcement practice 'had a discriminatory effect and that it was motivated by a discriminatory purpose.'" (citing to Wayte, 470 U.S. at 608)); United States v. Avery, 137 F.3d 343, 356 (6th Cir. 1997) (applying the standard for selective prosecution claims to an allegation of selective law enforcement claim arising from a police airport stop); United States v. Barlow, 310 F.3d 1007, 1010 (7th Cir. 2002) ("But the same analysis governs both types of claims [claims of selective prosecution and selective law enforcement]: a defendant seeking discovery on a selective enforcement claim must meet the same 'ordinary equal protection standards' that Armstrong outlines for selective prosecution claims." (citing Armstrong, 517 U.S. at 465)); Chavez v. Illinois State Police, 251 F.3d 612, 635-36 (7th Cir. 2001) (applying the selective prosecution standard to traffic stops, detentions, and searches motivated by racial profiling); United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996) ("The Equal Protection Clause precludes selective enforcement of the law based on race. A person claiming unequal enforcement of a facially neutral statute must show both that the enforcement had a discriminatory effect, and that the enforcement was motivated by a discriminatory purpose." (first citing Whren v. United States, 517 U.S. 806, 813 (1996), then citing Armstrong, 517 U.S. at 465)); Benigni v. City of Hemet, 879 F.2d 473, 478 (9th Cir. 1988) ("An equal protection claim based on selective law enforcement activities is judged according to ordinary standards and the plaintiff must show both a discriminatory effect and discriminatory motivation." (citing Wayte, 470 U.S. at 608)); Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1167 (10th Cir. 2003) ("Broad discretion has been vested in executive branch officials to determine when to prosecute, and by analogy, when to conduct a traffic stop or initiate an arrest."; applying the selective prosecution standard in Armstrong to a claim of racially selective law enforcement); see also Whren v. United States, 517 U.S. 806, 813 (1996) ("We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.").
See e.g., Washington, 869 F.3d at 214 ("A defendant challenging criminal prosecution at either the law enforcement or prosecution inflection points must provide 'clear evidence' of discriminatory effect and discriminatory intent (the latter is sometimes referred to as 'discriminatory purpose')."
Id.
Cognizability
"Pretrial habeas, followed by interlocutory appeal, is an 'extraordinary remedy'" available "only in very limited circumstances." In order to prevent unnecessary delay and confusion at the pretrial stage, we have consistently held that pretrial habeas "should be reserved for situations in which the protection of the appellant's substantive rights or the conservation of judicial resources would be better served by interlocutory review." To prevent misuse, we have held pretrial habeas to be unavailable when resolution, "even if resolved in favor of the appellant, would not result in immediate release." Such claims would not be cognizable on interlocutory appeal because, if it were meritorious, its success "would not bar prosecution or conviction."
Ex parte Ellis, 309 S.W.3d 71, 78 (Tex. Crim. App. 2010); Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005).
Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001).
Ex parte Couch, 678 S.W.3d 1, 4 (Tex. Crim. App. 2023) (quoting Weise, 55 S.W.3d at 619).
Couch, 678 S.W.3d at 3-4 (quoting Smith, 178 S.W.3d at 801); Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App. 2006) ("[A] claim is cognizable in a pretrial writ of habeas corpus if, resolved in the defendant's favor, it would deprive the trial court of the power to proceed and result in the appellant's immediate release.").
Similarly, and in order to promote informed judicial rulings before trial, we have observed that "pretrial habeas is unavailable when the resolution of a claim may be aided by the development of a record at trial." Thus, while facial challenges to the constitutionality of a statute under which an appellant is charged are cognizable, "as-applied" challenges to that statute generally are not. Nevertheless, we have recognized certain circumstances to be cognizable (e.g., double jeopardy or bail) "where the rights underlying those claims would be effectively undermined if not vindicated prior to trial."These circumstances may include matters collateral to and distinct from the matters relevant to the guilt or innocence as determined through the course of trial.
Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010).
Ellis, 309 S.W.3d at 79.
Ex parte Perry, 483 S.W.3d 884, 896 (Tex. Crim. App. 2016) (citing Ellis, 309 S.W.3d at 79).
With these principles in mind, we turn to the cognizability of Appellant's claim of selective arrest and prosecution utilizing pretrial habeas as its vehicle. In short, we agree with the Fourth Court of Appeals and find that Appellant's claim is cognizable under the unique facts of his case. We agree that failing to adjudicate the issue now would effectively undermine Appellant's right not to be arrested and prosecuted in an unconstitutional fashion. If successful on the merits, his case would be dismissed and barred from prosecution or conviction. As the court of appeals also noted, the record is already fully developed via a pretrial hearing.
The collateral nature of Appellant's claim also weighs in favor of cognizability. The facts necessary to resolve Appellant's claim are largely independent of the facts concerning the question of his guilt or innocence-especially since selective prosecution or selective enforcement are not defenses on the merits to the criminal charge. Moreover, these facts would not naturally arise during the course of a trial giving strength to the conclusion that the rights Appellant seeks to vindicate "would be effectively undermined if not vindicated prior to trial." Thus, a trial court in this situation can conduct a fact-finding proceeding (and develop a record) prior to trial without being inefficiently redundant to the trial itself.
Perry, 483 S.W.3d at 896 (citing Ellis, 309 S.W.3d at 79).
Weise, 55 S.W.3d at 620; Doster, 303 S.W.3d at 724. In contrast to selective prosecution cases, a successful resolution of a vindictive prosecution case is not likely to affect a broad class of defendants and thereby have an impact on judicial economy. This is because vindictive prosecution cases tend to be individualized to a specific defendant because they typically allege State retaliation after a specific defendant has done something such as exercising a right.
Declaring either type of claim to be non-cognizable would jeopardize future claims alleging unconstitutional discriminatory practices by the State. Such a holding would willfully blindfold the judiciary from recognizing potentially grave and even wide-spread injustice. We stress again that this is especially true where the facts necessary to address these claims do not arise naturally through the course of trial. In those scenarios where some part of the State is actually unconstitutionally discriminatory in their conduct, justice would arrive far too late (if at all) to properly vindicate constitutional rights. Sunlight, especially for those scenarios, is the best disinfectant.
See Emily Wagster Pettus, Justice Department Opens Civil Rights Probe of Sherriff's Office After Torture of 2 Black Men, AP News (Sept. 20, 2024, 8:29 AM), https://apnews.com/article/mississippi-civil-rights-police-brutality-goon-squad2554c21a0c7366849d6119b07855f8c1 (discussing the allegation of pervasive violent racist practices by the Rankin County Sherriff's Department after six law enforcement officers-"so willing to use excessive force they called themselves the Goon Squad"-were convicted after breaking into a home without a warrant and committing a "racist attack that included beatings, repeated use of stun guns and assaults with a sex toy before one of the victims was shot in the mouth" that lasted for hours). By the time plaintiffs were able to file a civil rights claim under 42 U.S.C. § 1983, the "Goon Squad" had already become "so brazen," they had their own Rankin County Sherriff's Department challenge coin complete with a Goon Squad logo on the back. Jenkins v. Rankin Cty, No. 3:23-CV-374-DPJ-ASH, 2024 WL 3526903 (S.D.Miss. July 24, 2024) (order); Nate Rosenfield, et al., Rankin 'Goon Squad' of Law Officers Admit to Hindering Prosecution in Torture Case, Mississippi Today (Sept. 26, 2024, 3:26 PM), https://mississippitoday.org/2023/08/14/rankin-goon-squad-admits-hiding-evidence-in-tortureof-black-men/. In an official press release from the U.S. Attorney's Office for the Southern District of Mississippi, it was reported that members of the Goon Squad (including additional members) exchanged texts that "routinely discussed extreme, unnecessary uses of force and other ways to dehumanize residents of Rankin County." U.S. Att'y Office for S.D.Miss., Press Release: Remarks of United States Attorney Todd Gee Announcing a Pattern or Practice Investigation of the Ranking County, Mississippi Sheriff's Department and Rankin County (Sept. 19, 2024)
Given that all the above considerations weigh in favor of cognizability, we hold that Appellant's claim, at least under these circumstances, to be cognizable for pretrial habeas purposes.
Selective Prosecution and Selective Enforcement
The Governor of the State of Texas is "the Chief Executive Officer of the State." As part of the executive branch under the Governor's direction, the Texas Department of Public Safety is tasked with "enforce[ing] the laws protecting the public safety and provid[ing] for the prevention and detection of crime."
Tex. Const. art. IV, § 1.
Tex. Gov't Code § 411.002; see also Tex. Const. art. IV, §§ I, X (mandating the Governor, as the "Chief Executive Officer of the State" to "cause the laws to be faithfully executed.").
A claim of selective prosecution or enforcement asks a court to "exercise its judicial power" by dismissing criminal charges prior to the onset of trial. The Supreme Court has recognized, prosecutorial discretion is "particularly ill-suited" for judicial review:
United States v. Armstrong, 517 U.S. 456, 464 (1996); United States v. Mason, 774 F.3d 824, 829 (4th Cir. 2014) ("A selective law enforcement claim 'asks a court to exercise judicial power over a special province of the Executive.'" (quoting Armstrong, 517 U.S. at 464)).
Wayte, 470 U.S. at 607.
Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.
Id. at 607-08 (emphasis added) "In the absence of invidious discrimination, however, a court is not free under the aegis of the Equal Protection Clause to substitute its judgment for the will of the people of a State as expressed in the laws passed by their popularly elected legislatures" Parham v Hughes, 441 U.S. 347, 351 (1979) (emphasis added) "The People elect legislative and executive branch officials-not judges or 'experts'-to make judgments about the costs and benefits of government action and to balance competing policy goals in light of those judgments" Abbott v Harris Cty, 672 S.W.3d 1, 5 (Tex 2023) (quoting Abbott v Anti-Defamation League, 610 S.W.3d 911, 926 (Tex 2020) (Blacklock, J, concurring).
Moreover, the potential remedy to a successful selective prosecution or enforcement claim, a dismissal of the criminal charge, is a drastic one. This is because "a selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." Thus, Supreme Court cases on selective prosecution have collectively "taken great pains to explain that the standard is a demanding one." Accordingly, "'[t]he presumption of regularity supports' [the Government's] prosecutorial decisions and, 'in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.'"
Armstrong, 517 U.S. at 463.
Id.; see Mason, 774 F.3d at 829 ("In sum, the Armstrong burden is a demanding one and Mason has failed to identify any cases at the Supreme Court or in this circuit where an Armstrong violation for selective law enforcement has been found. Fourth Amendment claims, by contrast, are often successful. . . . To be sure, the two challenges are not, at least as a technical matter, mutually exclusive. However, one is clearly more likely to be successful than the other." (emphasis added; internal citations omitted)).
Armstrong, 517 U.S. at 464 (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)).
Nevertheless, prosecutorial discretion and the discretion to enforce the law is not "unfettered" because "[s]electivity in the enforcement of criminal laws . . . is still subject to constitutional constraints." As the Supreme Court has stated, the decision whether to prosecute may not be "deliberately based on an unjustifiable standard such as race, religion, or other arbitrary classification."
Wayte, 470 U.S. at 608; Bell, 86 F.3d at 823.
Oyler v. Boles, 368 U.S. 448, 456 (1962).
In order to succeed in a claim of selective prosecution or selective enforcement, the claimant must prove with "exceptionally clear evidence" that:
1. The prosecutorial policy had a discriminatory effect; and
2. it was motivated by a discriminatory purpose.
Wayte, 470 U.S. at 608; Washington, 869 F.3d at 214; Farm Labor Organizing Committee, 308 F.3d at 534; Bell, 86 F.3d at 823; Mason, 774 F.3d at 829. We note that other Equal Protection cases outside of the criminal enforcement context analyze their respective claims of gender-based discrimination in a similar way:
When a statute gender-neutral on its face is challenged on the ground that its effect upon women are disproportionally adverse, a twofold inquiry is thus appropriate. The first question is whether the statutory classification is indeed neutral in the sense that it is not gender-based. If the classification itself, covert or overt, is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination.Pers. Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 274 (1979) (emphasis added).
The appellant bears the burden initially to "dispel the presumption that the [Government] has not violated equal protection" with "clear evidence to the contrary." Once a prima facie case is established, the burden shifts to the State to justify the discriminatory policy.
Armstrong, 517 U.S. at 465.
See id. at 465-68.
The First Prong: The Prosecutorial Policy Had a Discriminatory Effect
Under the "discriminatory effect" prong, the claimant must demonstrate "that similarly situated individuals of a different [arbitrary classification] were not prosecuted." Specific to claims of gender discrimination, the Supreme Court has "recognized that in certain narrow circumstances men and women are not similarly situated; in these circumstances, a gender classification based on clear differences between the sexes is not invidious, and a legislative classification realistically based upon those differences is not unconstitutional."
Id. ("To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted."); Bell, 86 F.3d at 823.
Michael M. v. Sup. Ct. of Sonoma Cty., 450 U.S. 464, 478 (1981) (concurring, J. Stewart) (agreeing with the majority that "[t]his Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situation in certain circumstances." (quoting Michael M., 450 U.S. at 469 (majority))).
The Second Prong: The Prosecutorial Policy Was Motivated by a Discriminatory Purpose
Under the second prong, we can only presume that the word "discriminatory" the characteristic of treating a distinct group or group member in an unfair or unjust way based on a prejudiced viewpoint, as opposed to merely differentiating or discerning between choices as an act of good judgment. Otherwise, penalizing men for knowingly trespassing in the women's bathroom would be unconstitutional. So would having gender-specific prisons and state laws concerning statutory rape. One class is being singled out and treated differently than another class. Under this definition, the Supreme Court's standard would not make sense. Our definition, on the other hand, is more consistent with selective prosecution and enforcement case law which uses synonyms and synonymous phrases such as "invidious," "with an evil eye and an unequal hand," "no reason for it exists except hostility to the [class]," and "with a mind so unequal and oppressive." Black's Law Dictionary confirms our understanding of the word because it defines "invidious discrimination" as: "Discrimination that is offensive or objectionable, esp. because it involves prejudice or stereotyping."
See Discriminatory; *discriminative; discriminating; *discriminant, Garner's Dictionary of Legal Usage (3d ed. 2009) ("Because discriminatory has extremely negative connotations, and discriminating quite positive connotations, the noun discrimination suffers from a split personality . . . .").
The dictionary sense of "discrimination" is neutral while the current political use of the term is frequently non-neutral, pejorative. With both a neutral and non-neutral use of the word having currency, the opportunity for confusion in arguments about racial discrimination is enormously multiplied. For some, it may be enough that a practice is called discriminatory for them to judge it wrong. Others may be mystified that the first group condemns the practice without further argument or inquiry. Many may be led to the false sense that they have actually made a moral argument by showing that the practice discriminates (distinguishes in favor of or against). The temptation is to move from "X distinguishes in favor of or against" to "X discriminates" to "X is wrong" without being aware of the equivocation involved.Discrimination, Black's Law Dictionary (12
Tex. Admin Code § 260.112; Tex. Penal Code § 22.011 (a)(2)(A). See Michael M. v. Sup. Ct. of Sonoma Cty., 450 U.S. 464, 469, 471 (1981) (upholding statutory rape statutes targeting only men; "[t]his Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situation in certain circumstances;" "We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse.").
Gawlik v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886); Id. at 374; Armstrong, 517 U.S. at 464-65 (quoting Yick Wo, 118 U.S. at 373); see also Parham v. Hughes, 441 U.S. 347, 351 (1979) ("invidious discrimination").
Invidious discrimination, Black's Law Dictionary (12th ed. 2024).
Accordingly, under the second prong, the claimant must show "an intentional or purposeful discrimination in the enforcement of the statute against him." Moreover, "[a] discriminating purpose will not be presumed; a showing of clear intentional discrimination is required." "'Discriminatory purpose,' however, implies more than intent as volition or intent as awareness of consequences." As the Supreme Court stated in a selective prosecution case based solely and exclusively in the racial context:
Satterwhite v. State, 726 S.W.2d 81, 84 (Tex. Crim. App. 1986).
Id.
Feeney, 442 U.S. at 279.
There should be certainty to every intent. Plaintiff in error seeks to set aside a criminal law of the state, not on the ground that it is unconstitutional on its face, not that it is discriminatory in tendency and ultimate actual operation as the ordinance which was passed on in the Yick Wo Case, but that it was made so by the matter of its administration. This is a matter of proof; and no fact should be omitted to make it out completely, when the power of [the court] is invoked to interfere with the course of criminal justice of a state.
Ah Sin v. Wittman, 198 U.S. 500, 508 (1905).
Furthermore, "[a] defendant may demonstrate that the administration of a criminal law is 'directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive' that the system of prosecution amounts to 'a practical denial' of equal protection of the law."
Armstrong, 517 U.S. at 464-65 (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886)). In the grand jury selection context, purposeful discrimination can be demonstrated by first establishing "that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or applied." Castaneda v. Partida, 430 U.S. 482, 494 (1977) (emphasis added). The movant must then demonstrate the degree of underrepresentation "by comparing the proportion of the group in the total population called to serve as grand jurors, over a significant period of time." Id.
To be clear, the guiding principles applied in these types of claims come from the Equal Protection Clause and not the Fourth Amendment. As the Supreme Court has explicitly established: "[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment." And while the Equal Protection Clause should guarantee equal protection, it does not provide for the right to commit criminal offenses in violation of facially neutral laws of the States. Thus, the Supreme Court has set a rigorous "demanding" burden be met before a defendant is entitled to any remedy. And because the burden is so "demanding," it is not surprising that successful claims of selective prosecution or enforcement claims are extremely rare in contrast to suppression cases under the Fourth Amendment.
Whren v. United States, 517 U.S. 806, 813 (1996).
We note here that selective prosecution and enforcement claims are different from Equal Protection cases involving affirmative action or other official rules/policies that are on their face intending to treat different classes differently. See e.g., Students for Fair Admissions v. Harvard Univ., 600 U.S. 181, 213 (2023); see also Fisher v. Univ. of Texas, 570 U.S. 297, 313 (2013); Shaw v. Reno, 509 U.S. 630, 645 (1993).
Mason, 774 F.3d at 829 ("In sum, the Armstrong burden is a demanding one and Mason has failed to identify any cases at the Supreme Court or in this circuit where an Armstrong violation for selective law enforcement has been found. Fourth Amendment claims, by contrast, are often successful. . . . To be sure, the two challenges are not, at least as a technical matter, mutually exclusive. However, one is clearly more likely to be successful than the other." (emphasis added; internal citations omitted)).
Discussion
We agree that the evidence adduced at trial demonstrated some level of a "discriminatory effect" in that women were not prosecuted (at least under the State offense of criminal trespass). However, we cannot ignore the fact that these women were transferred to the custody of the U.S. Border Patrol-a federal law enforcement agency with the authority to arrest migrants illegally crossing the border. Those detainees could have been prosecuted under the discretion of the U.S. Attorney's Office. Though it is questionable whether Captain Betancourt's "guidance" email is sufficient to constitute an official policy of the Governor, DPS, OLS, Maverick County, or even the larger entity of the State, it is undisputed that zero women have been charged-at least within the five-county area under DPS-with the misdemeanor of criminal trespass.
Wayte, 470 U.S. at 608.
8 U.S.C. § 1325 ("Improper entry by alien"); 8 U.S.C. § 1357 (empowering immigration officers and employees with the ability to arrest migrants "entering or attempting to enter the United States in violation of any law or regulation.").
We note, however, that although women were not charged with criminal trespass, some were arrested and charged with the far more serious felony of human smuggling.We also observe that though zero women were arrested and charged with criminal trespass by DPS in the five-county area, it was not shown whether women were charged with criminal trespass by other law enforcement agencies acting as arms of the State operating in the same area. It was also not shown whether DPS or OLS charged women with criminal trespass in the other 38 out of the total 43 counties cooperating with OLS. Appellant, furthermore, failed to show that women somehow escaped the criminal justice system whereas men did not. And it was not shown that the women and other males turned 0over to federal authorities were not prosecuted under federal law. As the record shows for at least the five-county area, OLS transferred custody of women, family units, and other men over to federal agents capable of prosecuting migrants for federal offenses. Moreover, it is not certain that the women in question truly qualify as "similarly situated" persons in this context. Women cannot be interchangeably housed safely with men in detention facilities designed for men. Nevertheless, although Appellant's evidence may be inappropriate in its scope, we shall assume for the sake of argument that Appellant has satisfied the first prong in showing a "discriminatory effect" in demonstrating a prima facie case for selective prosecution or enforcement.
See (1 CR 53-59) (documenting the arrest of Monica Martinez for the felony of "Smuggling of Persons" in Kinney County).
Under the Eighth Amendment and other derivative state regulations, the State has a legal duty to safely house detainees and prisoners, and to protect them from assault from other prisoners. Farmer v. Brennan, 511 U.S. 825, 844-45 (1994).
However, Appellant's claim faces far more obstacles under the second prong. In alleging that the OLS "policy" and its resulting discriminatory effect was motivated by a discriminatory purpose, Appellant had to definitively show that an otherwise facially neutral law is being administered in bad faith-that it was "directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive" that equal protection of the law was denied. In Yick Wo, the plaintiff was able to demonstrate that a facially neutral ordinance was being enforced "exclusively" against Chinese individuals but not non-Chinese individuals in similarly situated conditions. There, the plaintiff was able to show that his permit was denied because he was Chinese. Thus, the underlying motivation behind the policy was demonstrably "unequal and oppressive."
Armstrong, 517 U.S. at 464-65 (quoting Yick Wo, 118 U.S. at 373). We once more note that although OLS was initiated by Governor Abbott, they must defer to the local district attorney's prosecutorial discretion in each county or district. State v. Zurawski, No. 23-0629, 2024 WL 2787913, at *6 (Tex. May 31, 2024) (citing State v. Stephens, 663 S.W.3d 45, 47, 52 (Tex. Crim. App. 2021)).
Armstrong, 517 U.S. at 464-65 (quoting Yick Wo, 118 U.S. at 373); Yick Wo, 118 U.S. at 373-74 ("Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.").
Id. at 374 ("No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners below, and which, in the eye of the law, is not justified."); see Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) ("'Discriminatory purpose,' however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." (internal citations omitted)).
In the instant case, we first note that Appellant has a questionable nexus between the "guidance email" and its alleged effect. The guidance email, by its own language, applied only to Val Verde County and Kinney County-not Maverick County where Appellant was arrested, nor the entire five-county area. To the extent that it influenced DPS arrests in Maverick County, Appellant is unable to show that he is being "invidiously" punished for criminal trespass because he is male. Betancourt's guidance email did not target all males but only some males. To that extent that OLS targeted some males, the guidance was not motivated to target them to punish them because they were male. Appellant was also unable to show that the criminal trespass law was "directed so exclusively against" all males. Betancourt's email explicitly listed examples involving males that DPS Troopers were to turn over to border patrol instead. These included males that were minors or part of a family unit in the company of a minor. Betancourt also added to these with the exemption for adult males who were "60-plus or injured."
Exh. 13. Although there was an expectation that the guidance be followed, it is questionable to immediately label this as an actual policy versus an informational guidance based on Betancourt's knowledge of jail capacities in the five-county region.
See supra note 77 (defining "invidious discrimination"); Parham, 441 U.S. at 351 (requiring "invidious discrimination" to succeed in an Equal Protections claim).
Gawlik v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980).
Feeney, 442 U.S. at 279.
Armstrong, 517 U.S. at 464-65 (quoting Yick Wo, 118 U.S. at 373) (emphasis added); see also Castaneda, 430 U.S. at 494 (requiring under an equal protections claim "the establishment of a recognizable, distinct class, singled out for different treatment under the laws, as written or applied").
Exh. 13.
Id.
(2 RR 80).
Witness testimony suggested that jail capacity limitations within the five-county area during an ongoing state of emergency were the factors actually driving the Betancourt's evolving "guidance." Appellant's own exhibits demonstrated the large numbers of migrants crossing the border illegally. One of Appellant's own exhibits from his pretrial habeas brief estimated that more than 265,500 unauthorized migrants had been detained or "apprehended" in the roughly year-long period contemporaneous to Appellant's arrest. As observed by the trial judge, this was a mere fraction out of the estimated "three million" that had illegally crossed the border in the past year-and-half and "couple hundred thousand in Maverick County" alone. The vast majority of these individuals, according to one DPS trooper and as Appellant's best comparator evidence demonstrates, were male.
Again, we note that evidence heard by the trial court were limited in scope to the conditions of the processing centers and jails in the five-county area. This was not reflective of processing centers or jails in all 43 counties cooperating with DPS in OLS.
(2 RR 112).
Out of the 4,076 arrests for criminal trespass, we assume that the "similarly situated" comparator cases that Appellant produced in his brief and elicited through testimony were the best examples of unequal treatment of the members of mixed groups. In Appellant's brief, the best eight groups provided to the trial court were collectively composed of 26 adult men compared to only 11 adult women. (1 CR 6-7). Similarly, the best "similarly situated" mixed-sex groups (including Appellant's group) that the four troopers testified to were collectively composed of 20 adult males compared to 7 adult females. (2 RR 51-52, 57-58, 61, 72).
These substantial disparities in the demography likely have had an outsized influence on the disparities in the outcome. Presuming that the State understands it is operating with limited resources during an ongoing state of emergency and trying to achieve a maximum deterrence value, it would not be illogical nor unreasonable for the State to adjust their strategy on the allocation of existing jail space and the creation of additional jail space. Nor would it be objectively unreasonable nor arbitrary in adjusting their arrest targets as jail availability fluctuates. The evidence demonstrates far more heavily that the necessities of reality during an ongoing emergency (limited resources in the face of "sheer numbers"), rather than gender discrimination, was more likely the motivation for any discriminatory effect. Moreover, any person not formally arrested was not released, but instead transferred to the custody of the U.S. Border Patrol-which may very well had criminal consequences.
As demonstrated by Armstrong, not all disparities in outcome are the result of impermissible discrimination. A group of defendants in Armstrong alleged selective prosecution by the federal government based on their race. The Armstrong defendants supported their claim with a "study" showing that all 24 other persons adjudicated in 1991 for the same offenses related to cocaine trafficking were also African American. Armstrong, 517 U.S. at 459. Anecdotal affidavits also testified to the existence of many non-black defendants not being prosecuted by the federal government for the same crimes but were instead being prosecuted under more lenient state criminal justice laws. Id. at 460-61. The appellate court below found in favor of the Armstrong defendants, but the Supreme Court reversed them because of a faulty premise: "The Court of Appeals reached its decision because it started with 'the presumption that people of all races commit all types of crime-not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group." Id. at 469 (emphasis in original). After observing that 90% of persons sentenced in 1994 for cocaine trafficking were African American, the Court found the Armstrong defendants' study to be insufficient evidence for selective prosecution purposes. Id. at 470.
We note that the record demonstrates that the detention centers in question were: (1) originally built well before the beginning of the crisis; (2) designed to safely house male prisoners but not women; and (3) converted to detention centers only in reaction to the border crisis.
We reiterate that the judiciary, without "exceptionally clear evidence" of constitutional abuse, are in a poor position to evaluate the wisdom or folly of the State's exercise of discretion or creation of discretionary policies in regard to the administration of criminal justice. See Wayte v. United States, 470 U.S. 598, 607-08 (1985).
It was consistently asserted, between Captain Betancourt and the other four testifying DPS Troopers, that had jail capability and space been available, both women and men would all be arrested. Nevertheless, Appellant's case might have reached a different result had he been able to demonstrate that the demographical makeup of the population illegally crossing the border had a high percentage of women or that local detention centers had an actual ability and space to house large numbers of women.
(2 RR 112) (trial judge observing "it's more a matter of sheer number than anything else"); see Wayte, 470 U.S. at 607-08.
See 8 U.S.C. § 1325 (a) ("Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading misrepresentation or the willful concealment of a material fact, shall for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.").
Conclusion
In summary, Appellant's case is cognizable, but he has failed to meet his burden in demonstrating a prima facie case that he is being arrested and prosecuted because of his gender. We recognize and are concerned by at least the appearance of a discriminatory impact in the subjects of this case and others in the five-county area. Nevertheless, Appellant's evidence fails to meet the "demanding" standard required for judicial interference in the State's discretion in administering criminal justice policy and priorities. Appellant did not show by "exceptionally clear evidence" that the OLS mindset administering the facially neutral criminal trespass law was "so unequal and oppressive" against him because he is male. We reverse the court of appeals and affirm the trial court's denial of Appellant's pretrial writ of habeas corpus on the merits.
Armstrong, 517 U.S. at 463.
DISSENTING OPINION
Keller, P.J., filed a dissenting opinion in which Keel, J., joined.
Although Appellant says the decision to prosecute violated his equal protection rights, the facts he alleges would show not that the prosecutor discriminated on the basis of sex, but that law enforcement discriminated on the basis of sex. The claim before us is really a "selective enforcement" claim rather than a "selective prosecution" claim. These two claims have much in common, but I would find at least one difference between them to be dispositive: Dismissal of the prosecution is not an appropriate remedy for a "selective enforcement" claim. And because of that, as I shall explain, Appellant's claim is not cognizable on habeas corpus.
Also, although the Court says that Appellant's claim is nuanced, it treats the claim as if it were a "selective prosecution" claim. So I also write briefly to explain why I think that selective-prosecution claims are ordinarily not cognizable on pretrial habeas and why, nevertheless, Applicant's claim in this case would be cognizable if it were actually a selective-prosecution claim.
A. Dismissal is not an appropriate remedy for a "selective enforcement" claim, so Appellant's claim is not cognizable on pretrial habeas.
The Supreme Court has held that a prosecuting authority does not violate equal protection by having a "passive" policy of prosecuting only those who report themselves or were reported as having violated the law.1 The policy of the prosecutors in Appellant's and other cases under Operation Lone Star was a passive policy of prosecuting only those who were arrested by law enforcement. This policy does not discriminate against anyone in violation of equal protection.
But the Supreme Court has recognized that discrimination by law enforcement can give rise to an equal protection claim of selective enforcement.2 The Seventh Circuit has explained the distinction between how these claims arise, explaining that selective prosecution occurs when, from among the pool of people referred by police, a prosecutor pursues similar cases differently based on a prohibited category such as race, while selective enforcement occurs when police investigate people of one race but not similarly-situated people of a different race, resulting in a constitutional problem that precedes the prosecutor's role.3
The Court is correct that the standards for establishing a constitutional violation are the same for selective-prosecution and selective-enforcement claims, but that does not mean that the same remedy applies to both types of claims. The remedy question is not settled. The Seventh Circuit issued dictum that might suggest dismissal of the case to be appropriate for a selective-enforcement claim,4 and the Tenth Circuit has assumed that dismissal is an appropriate remedy.5 But the Sixth Circuit has held that only civil remedies are appropriate for a selective-enforcement claim,6 the Eighth Circuit has said that it is uncertain that dismissal is an appropriate remedy,7 and the Fifth Circuit has expressed doubt about whether even suppression of evidence would be an appropriate remedy.8
Some of the federal circuits have cited Yick Wo v. Hopkins 9 as a selective-enforcement case.10The remedy in Yick Wo was to discharge the defendants from their convictions,11 which equates to the remedy Appellant seeks. But Yick Wo does not appear to be a case of selective enforcement because it involved discrimination by the municipal board of supervisors in issuing permits to operate a laundry. Non-Chinese were given permits, but Chinese nationals were denied permits.12So Yick Wo was not a case where two different groups of people violated the law and the police arrested only people from one group. Rather, Yick Wo involved the administrators of a city creating a situation where only one group would even violate the law.
In United States v. Armstrong, the defendant disputed the need to show that others were "similarly situated" to entitle him to discovery in an attempt to establish an equal protection violation.13 The Supreme Court discussed Yick Wo in the context of selective prosecution, but used it only as an example of how a party could prove that others were "similarly situated."14 In its discussion about the need for this showing, the Court never suggested that the remedy in Yick Wo would apply to a selective-prosecution claim, saying instead, "We have never determined whether dismissal of the indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of his race."15
In a decision as recent as 2022, a federal district court, while advocating for dismissal as a remedy for a selective-enforcement claim, acknowledged, "When the racially biased decision is made not by the prosecutor but by another law enforcement officer, the question of whether dismissal is required is not strictly settled."16 As we see, then, no binding caselaw requires dismissal as a remedy for a selective-enforcement claim, nor is such a remedy supported by even the weight of persuasive authority.
Absent binding or even substantial persuasive authority, we should abide by general principles. "An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction."17 That principle should not change merely because the illegality is an equal-protection violation instead of a Fourth Amendment violation. The prosecutor is the one responsible for the prosecution, not a law enforcement officer.
Moreover, the prosecutor enjoys absolute immunity from civil damages for any unconstitutionality in bringing the prosecution.18 So, at least ordinarily, a defendant's only real remedy for a selective-prosecution violation is dismissal of the criminal case. That is not true if a law-enforcement officer selectively enforces a law-the law-enforcement officer would have only qualified immunity, which would likely be defeated if purposeful discrimination were shown.19
And once we determine that dismissal is not an appropriate remedy, it necessarily follows that the claim in question is not cognizable. "If the relief sought would not prevent prosecution, pretrial habeas is unavailable."20
B. Most "selective prosecution" claims are not cognizable, but this claim would be cognizable if it were a "selective prosecution" claim.
An "as applied" constitutional claim is cognizable when the right underlying the claim would be effectively undermined if not vindicated prior to trial.21 This rationale derives from the Supreme Court's decision in Abney v. United States,22 a double-jeopardy case.23 The Supreme Court has refused to extend the Abney rationale to a vindictive-prosecution claim, holding that it really did not involve the sort of right that is effectively undermined if not vindicated prior to trial.24 The Ninth Circuit has held that this Supreme Court holding about vindictive-prosecution claims necessarily applies to selective-prosecution claims.25 Other courts have expressed agreement with the Ninth Circuit's conclusion that selective-prosecution claims do not fall under the Abney rationale.26
In refusing to extend Abney to a vindictive-prosecution claim, the Supreme Court analogized to the right to a speedy trial.27 The Court saw a difference between a double-jeopardy right not to be tried and the speedy trial right not to have a non-speedy trial. The latter is not really a right not to be tried but is a right to dismissal when the trial is tainted by its lack of speediness: "It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial."28
The reason a vindictive-prosecution claim does not involve a right not to be tried seems to be that a right not to be subject to a trial motivated by vindictiveness is not the same as a right not to be tried. It is the vindictive motive of the prosecutor, not the trial itself, that creates the constitutional violation. Likewise, in a selective prosecution, it is the discriminatory motive of the prosecutor, not the trial itself that creates the constitutional violation. A defendant who is guilty of the criminal violation and who has only a valid selective-prosecution claim has not shown any intrinsic reason why he should not be prosecuted and convicted. He instead seeks to avoid criminal liability on an entirely extrinsic basis-the way other violators are treated and the motivation of the prosecuting authorities in treating the defendant differently. Pointedly, if the relevant authority started prosecuting a member of the class that the defendant claims is not being prosecuted (e.g. women), the very basis for defendant's selective-prosecution claim could vanish.
And judicial economy concerns weigh against the pre-trial cognizability of selective-prosecution claims because they are almost always without merit, and this general lack of merit flows inherently from the nature of this type of claim. The claim asks a court to review a prosecutorial or law-enforcement entity's exercise of broad discretionary power to decide who can be charged, and courts are generally ill-suited to conduct such a review. The inherently low probability of success associated with claims of this type weighs against allowing them to burden the appellate system with interlocutory appeals.
But the claim in this case is different because of its potential for judicial economy. Appellant's claim-that women are not being prosecuted and men are-could apply to hundreds or thousands of other cases. If Appellant had won, a large number of prosecutions would have been terminated (assuming the remedy of dismissal applies). And even in losing, substantial judicial savings might occur because courts could more easily dispose of a mass of identical claims.
Also, the sheer number of cases to which Appellant's claim could apply creates two other factors that would weigh in favor of cognizability. First, it creates a greater likelihood of success because it makes it easier to show a pattern of discrimination. Second, the sheer number of cases also reinforces a conclusion that the claim can be resolved without trying the case. In many selective-prosecution claims, the offense facts could well explain why one person was prosecuted and another was not (e.g. the heinousness of the offense or the relative culpability of the offender). But the number of cases makes it obvious that the facts of the offense here simply do not matter.
So, while selective-prosecution claims are not ordinarily cognizable, the extraordinary nature of the facts before us would make Appellant's claim cognizable if it were in fact a selective-prosecution claim. But I believe that his claim is not in fact cognizable because it is not a selective-prosecution claim but is a selective-enforcement claim, for which dismissal of the case is not a valid remedy.
I would vacate the court of appeals's decision and order that the appeal be dismissed.29 I respectfully dissent.
Yeary, J., filed a dissenting opinion.
I agree with Presiding Judge Keller about the distinction between selective prosecution and selective enforcement. See Dissenting Opinion at 1 ("The claim before us is really a 'selective enforcement' claim rather than a 'selective prosecution' claim."). A decision to arrest or detain is distinct from a decision to prosecute. As the Presiding Judge points out, these claims are different, and for the other reasons she explains, selective enforcement claims should not be considered cognizable.
So, I agree with both the Presiding Judge, and Judge Keel, that such claims are not cognizable on pre-trial habeas. But that is all that I think needs to be said about this matter today. I would not go on, as the Presiding Judge's opinion does, to suggest that selective, and vindictive, prosecution claims should not ordinarily be considered cognizable.
This Court has embraced the idea that "certain types of as-applied claims may be raised by pretrial habeas because the particular constitutional right at issue . . . is the type that would be effectively undermined if not vindicated prior to trial." Ex parte Perry, 483 S.W.3d 884, 896 (Tex. Crim. App. 2016). A prosecution motivated by reasons that are in conflict with an accused's constitutional right to equal protection of the law is an unconstitutional prosecution. City of Grants Pass Oregon v. Johnson, 144 S.Ct. 2202, 2220 (2024) ("[T]he Constitution provides many additional limits on state prosecutorial power, promising fair notice of the laws and equal treatment under them, forbidding selective prosecutions, and much more besides.") (emphasis added). This strikes me as exactly the kind of right that would be undermined if not vindicated before trial. The whole point of claiming selective prosecution is to advance the argument that the defendant would not have been prosecuted but for the selectively motivated decision to prosecute in the first place.
Seeming to address this consideration, Presiding Judge Keller contends that "a right not to be subject to a trial motivated by vindictiveness is not the same as a right not to be tried." Dissenting Opinion at 8. But I am not so sure. After all, it is not just any trial that a defendant claiming selective prosecution seeks to prevent. It is, rather, the prosecution that the defendant claims is being pursued selectively that he seeks to prevent.
Because I agree that the actual claim that Appellant is making is a non-cognizable selective enforcement claim, it should be dismissed, not denied on the merits. I respectfully dissent.
DISSENTING OPINION
Keel, J., filed a dissenting opinion.
I agree with Part A of the Presiding Judge's opinion: Appellant's selective enforcement claim is not cognizable in pretrial habeas, and we should dismiss it. I write separately because the majority opinion jeopardizes future claims of selective prosecution in Texas. Contrary to its understanding, the discriminatory-purpose element of selective-prosecution claims does not depend on hostility or bad faith, and discrimination is not justified by more discrimination. I respectfully dissent.
I. Discriminatory Purpose
The majority claims that the discriminatory-purpose element of a selective prosecution claim means "an unfair or unjust" prosecution "based on a prejudiced viewpoint." But it doesn't. Instead, it means a decision to prosecute that was "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Wayte v. United States, 470 U.S. 598, 608 (1985). Discriminatory purpose requires the State to select or reaffirm "a particular course of action in part because of, not merely in spite of, its adverse effects upon an identifiable group." Casarez v. State, 913 S.W.2d 468, 485 (Tex. Crim. App. 1994) (emphasis in original). If the government purposefully punishes class members more harshly than others for the same conduct, then it has acted with a discriminatory purpose. It does not matter whether it harbored hostility to that class.
This mirrors the treatment of other Equal Protection claims; they do not depend on hostility, either. Last year, for example, the Supreme Court held that an affirmative action policy violated the Equal Protection Clause regardless of its "well-intentioned" or "good faith" implementation. Students for Fair Admissions v. Harvard, 600 U.S. 181, 213 (2023); see also Fisher v. Univ. of Tex., 570 U.S. 297, 313 (2013) (reasoning that "good faith would [not] forgive an impermissible consideration of race."). Similarly, race-based gerrymandering policies are subject to scrutiny "regardless of the motivations underlying their adoption." Alexander v. NAACP, 218 L. ED. 2d 512, 541 (2024) (citing Shaw v. Reno, 509 U.S. 630, 645 (1993)). And race-based social programs may be discriminatory even when the racial classifications are "benign" or "remedial." Adarand Constructors v. Pena, 515 U.S. 200, 225 (1995). Good or bad faith may be relevant to a state-interest justification for the discriminatory policies. See, e.g., Fisher, 570 U.S. at 312-14. But discriminatory purpose does not depend on bad faith.
II. Efforts To Justify Discrimination
The majority tries to justify DPS's arrest policy by citing additional evidence of discrimination. The majority points out that Operation Lone Star's processing centers could house only men, but this shows the enterprise was discriminatory from the start-it does not justify the discrimination. The majority also points out that some males were exempt from arrest for trespass; minors, old men, injured men, and men belonging to a family group were not charged. But those exemptions are irrelevant to deciding whether Appellant was charged, at least in part, because he was male. See Casarez, 913 S.W.2d at 485. The fact that he was further discriminated against based on, for example, his age, marital status, or health would not rebut the fact that he was charged because he was a man. Discrimination is not justified by more discrimination.
III. Conclusion
The majority errs by entertaining Appellant's selective-enforcement claim and by jeopardizing future claims of selective prosecution. I respectfully dissent.
th ed. 2024) (quoting Robert K. Fullinwider, The Reverse Discrimination Controversy 11-12 (1980)).