Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00886-CR

The STATE of Texas,

Appellant

v.

Juan Orlando GARCIA COMPEAN,

Appellee

From the County Court, Kinney County, Texas

Trial Court No. 13930CR

Honorable Dennis Powell, Judge Presiding

Opinion by: Liza A. Rodriguez, Justice

Sitting: Patricia O. Alvarez, Justice

Luz Elena D. Chapa, Justice

Liza A. Rodriguez, Justice

Delivered and Filed: November 22, 2023

AFFIRMED

The State appeals the trial court’s order granting Juan Orlando Garcia Compean’s 

requested habeas relief and dismissing his criminal case with prejudice. We affirm.

BACKGROUND

On March 6, 2021, Governor Greg Abbott directed the Texas Department of Public Safety 

(“DPS”) to initiate Operation Lone Star (“OLS”) and “devote additional law enforcement 

resources toward deterring illegal border crossing and protecting [] border communities.” He 

further directed “DPS to use available resources to enforce all applicable federal and state laws to 
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prevent criminal activity along the border, including criminal trespassing, smuggling, and human 

trafficking, and to assist Texas counties in their efforts to address those criminal activities.” As 

part of OLS, Garcia Compean, a noncitizen, was arrested for criminal trespass in Kinney County; 

he filed an application for writ of habeas corpus seeking dismissal of the criminal charge, arguing 

his rights had been violated under the Constitution’s Equal Protection Clause and the Texas 

Constitution’s Equal Rights Amendment. See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 3(a). 

Specifically, Garcia Compean argued the State’s selective prosecution of men, and not similarly 

situated women, for criminal trespass as part of OLS violated his constitutional rights. The trial 

court granted the writ and set the matter for an evidentiary hearing.

At the hearing, the trial court heard the merits of Garcia Compean’s pretrial habeas claim, 

along with twenty-one other cases, all filed on selective prosecution grounds. We described the 

evidence presented at this hearing in our recent opinion, State v. Gomez, No. 04-22-00872-CR, 

2023 WL 7552682, at *1-4 (Tex. App.—San Antonio Nov. 15, 2023, no pet. h.), as both Gomez

and the instant appeal were heard at the same time. After considering the evidence presented at the 

hearing, on December 20, 2022, the trial court granted Garcia Compean’s requested relief, finding 

that he had presented a prima facie selective prosecution claim on the basis of equal protection:

Specifically, the Court finds Applicant [Garcia Compean] is a man, and the 

evidence proves purposeful discrimination in this case. The Applicant was arrested 

and charged, but would not have been arrested if he were a woman; hence, he was 

treated differently from similarly situated women, based on sex. Hence, the 

Applicant is the target of selective enforcement based on the constitutionally 

protected class of sex, in violation of equal protection [as] guaranteed by the U.S. 

Constitution and the Texas Constitution. Accordingly, the defendant [Garcia 

Compean] made a prima facie case of sex discrimination. The policy of Operation 

Lone Star, as it now stands, has a discriminatory effect and is motivated by a 

discriminatory purpose. 

The trial court then found the State had not met its burden of justifying the discriminatory 

treatment:
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The State, in turn, failed to prove an adequate justification for the discrimination. 

There was no evidence that the discrimination based on sex served an important 

governmental objective, and naturally therefore, no evidence to establish that the 

discrimination was substantially related to achievement of important governmental 

objectives. Furthermore, the State failed to prove that the State has a compelling 

interest and there is no other manner to protect that compelling interest without 

systematically arresting only men for criminal trespass and releasing all women. 

The Court does not find the criminal trespass statute to be unconstitutional, but 

finds the application of that law under Operation Lone Star renders the prosecution 

under that statute to be unconstitutional as applied to this individual. 

The Court does not find unconstitutional enforcement at the level of the local 

prosecutor’s office. Prosecution of women is not being summarily declined by the 

County Attorney’s office, but that office is limited to decisions of whether or not to 

prosecute the cases which the office receives, which are only cases involving 

accused males. Under the current system, the unconstitutional prosecution is fully 

implemented at the level of arrest of only male suspects.

However, ostensibly Kinney County could have eradicated the discriminatory 

intent of Operation Lone State by pulling out the county checkbook, and bearing 

the financial burden of arresting, housing, and prosecuting women, as the County 

surely does for other crimes. The State failed to produce evidence about the 

feasibility, or lack of feasibility, of that alternative. If the County had done so there 

is no reason to think the arresting officers could have been instructed to not only 

arrest men, but to also arrest women, when the probable cause existed to do so. But 

that has not happened.

The trial court “order[ed] the criminal prosecution against Applicant be dismissed with prejudice.” 

The State appealed. 

DISCUSSION

In its brief, the State argues the trial court erred in granting relief on Garcia Compean’s 

selective prosecution equal protection claim for the following three reasons: (1) his pretrial habeas 

claim is not cognizable; (2) he did not present a prima facie case of selective prosecution on the 

basis of violation of his equal protection rights; and (3) the State met its burden of showing its 

policy passes “the strictest of scrutiny.” These are the same arguments brought by the State in 

Gomez, 2023 WL 7552682, at *4. For the reasons enunciated in Gomez, we hold that Garcia 

Compean’s pretrial habeas claim is cognizable and that he met his burden of showing a prima facie 
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claim for selective prosecution on the basis of gender discrimination. See id. at *4-5. Thus, the 

burden shifted to the State to justify its discriminatory conduct under both strict scrutiny (Garcia 

Compean’s state claim) and intermediate scrutiny (Garcia Compean’s federal claim). See Ex parte 

Aparicio, 672 S.W.3d 696, 716 (Tex. App.—San Antonio 2023, pet. granted). With regard to 

Garcia Compean’s claim under the Texas Constitution’s Equal Rights Amendment, the State had 

to show that its discriminatory classification is narrowly tailored to serve a compelling 

governmental interest. Id. With regard to his federal equal protection claim, the State had to show 

“that the classification serves ‘important governmental objectives and that the discriminatory 

means employed’ are ‘substantially related to the achievement of those objectives.’” Miss. Univ. 

for Women v. Hogan, 458 U.S. 718, 724 (1982) (quoting Wengler v. Druggists Mut. Ins. Co., 446 

U.S. 142, 150 (1980)). For the reasons stated in Gomez, 2023 WL 7552682, at *5-6, we hold the 

trial court did not abuse its discretion in determining that the State had not met its burden under 

either strict or intermediate scrutiny. Therefore, we affirm the trial court’s order granting Garcia 

Compean habeas relief and dismissing his criminal case with prejudice.

Liza A. Rodriguez, Justice

DO NOT PUBLISH