Petition for Writ of Mandamus Denied and Majority and Dissenting 

Memorandum Opinions filed October 25, 2016.

In The

Fourteenth Court of Appeals

NO. 14-16-00814-CR

IN RE MITCHELL THOMPSON, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

339th District Court

Harris County, Texas

Trial Court Cause No. 1492257

D I S S E N T I N G M E M O R A N D U M O P I N I O N

Relator Mitchell Thompson alleges that the ex parte order for pre-conviction 

HIV testing entered against him is an unconstitutional application of Article 21.311

 

1 Article 21.31 provides that a person who is indicted for an offense under inter alia 

Section 22.011 of the Penal Code, shall, “at the direction of the court on the courts own motion 

or on the request of the victim of the alleged offense, undergo a standard diagnostic test 
2

of the Code of Criminal Procedure to him. I agree and would grant Thompson’s 

Petition for Writ of Mandamus. Because the Majority holds that Thompson has 

not shown himself entitled to relief, I respectfully dissent. 

After Thompson was indicted for having “plac[ed] a finger in the sexual 

organ of the Complainant,” the State requested and the trial court ordered

Thompson to submit to involuntary STD/AIDS/HIV testing. Yet, the face of the 

record shows that indictment is not supported by probable cause. Specifically, the 

probable cause affiant states that it was Defendant 1, not Thompson who is 

Defendant 2, who digitally penetrated the Complainant. Instead, Thompson, 

according to the affiant, “grabbed the complainant in a bear hug and placed her on 

the hood of the car in the driveway.” The affiant further alleges that after 

Thompson lifted the Complainant’s bra, he “put his mouth on one of the 

complainant’s breasts.” If proven, the allegation certainly states an offense. But it 

would be remarkable, indeed, if such acts were capable of causing a sexually 

transmitted disease and the State has never alleged as much. Nor does the State 

allege that the Complainant has requested the testing.

The trial court’s order for nonconsensual HIV testing is an unconstitutional 

application of Article 21.31 to Thompson because it

 

approved by the United States Food and Drug Administration for human immunodeficiency 

virus (HIV) infection and other sexually transmitted diseases.” Tex. Code Crim. Proc. Ann. 

art. 21.31. The Penal Code offense alleged here is “the penetration of the anus or sexual organ of 

another person by any means without that person’s consent.” Tex. Penal Code Ann. 

§ 22.011(a)(1)(A).
3

(a) does not require probable cause of a crime capable of causing a 

sexually transmitted disease;

2

and 

(b) does not represent any State interest in regulation of public health 

or ease any trauma to the victim;3and 

(c) ignores Thompson’s expectation of privacy in his blood and his 

HIV status. 

Further, the trial court’s order is an unconstitutional application of Article 

21.31 to Thompson because the face of the record on Petition for Writ of 

Mandamus demonstrates that there is no probable cause that Thompson committed 

a crime under Section 22.011(a) or any other section of the Penal Code for which 

HIV testing is authorized by Article 21.31. 

For the foregoing reasons, I would grant Thompson’s Petition for Mandamus 

Relief. Because the Majority does not, I respectfully dissent.

/s/ Sharon McCally

Justice

Panel consists of Justices McCally, Brown, and Wise (McCally, J., Dissenting).

Do Not Publish — Tex. R. App. P. 47.2(b).

 

2

In fact, because Section 22.011 makes it a crime to penetrate “by any means,” Section 

21.31 would authorize HIV testing for penetration by a sterile instrument or a tampon.

3

See generally Stacey B. Fishbein, Pre-Conviction Mandatory HIV Testing: Rape, AIDS 

and The Fourth Amendment, 28 HOFSTRA L. REV. 835 (2000) (discussing the competing interests 

in pre-conviction testing).