COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EX PARTE:

EDUARDO FRIAS-GUTIERREZ, 

Appellant. 

§

§ 

§ 

§ 

§

No. 08-23-00203-CR

Appeal from the 

County Court 

of Kinney County, Texas 

(TC# 11938CR)

MEMORANDUM OPINION

Eduardo Frias-Gutierrez (Frias-Gutierrez) is a noncitizen who was arrested under 

Operation Lone Star (OLS) and charged with the misdemeanor offense of criminal trespass. 

Following his arrest, Frias-Gutierrez filed a pretrial application for writ of habeas corpus in which 

he requested the issuance of a habeas writ, an evidentiary hearing, and a dismissal of the underlying 

charge, contending he was the subject of selective prosecution in violation of state and federal 

constitutional equal protection principles. Without issuing a writ or holding a hearing, the trial 

court denied his habeas application. Frias-Gutierrez appealed, contending the trial court erred in 

not granting his requested relief. Treating the appeal as a mandamus petition, we remand to the 

trial court to give it the opportunity to reconsider its ruling in light of recent Fourth Court of 

Appeals’ precedent governing Frias-Gutierrez’s claims.
2

FACTUAL AND PROCEDURAL BACKGROUND

A. Frias-Gutierrez’s arrest and request for habeas relief

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

to initiate OLS to “deter[] illegal border crossing and . . . prevent criminal activity along the 

border.” Ex parte Aparicio, 672 S.W.3d 696, 701 (Tex. App.—San Antonio 2023, pet. granted

Aug. 23, 2023). As part of OLS, Frias-Gutierrez, a noncitizen, was arrested for criminal trespass 

in Kinney County on December 17, 2021. He filed an application for a pretrial writ of habeas 

corpus seeking dismissal of the criminal charge, arguing his rights had been violated under the 

United States Constitution’s Equal Protection Clause and the Texas Constitution’s Equal Rights 

Amendment, as the State was selectively prosecuting men, and not similarly situated women, for 

criminal trespass as part of OLS. See U.S. Const. amend. XIV; Tex. Const. art. I, § 3a. FriasGutierrez attached several exhibits supporting his claim that the State had a policy of arresting 

only male noncitizens for criminal trespass while referring similarly situated female noncitizens 

to Border Patrol. Among the exhibits was a Notice of Stipulation the State filed in another OLS 

case in which it stipulated: “women are not prosecuted for trespass as part of Operation Lone Star, 

even when they are found trespassing.” The State did not file a response to the application. On

June 14, 2023, the trial court denied Frias-Gutierrez’s application without issuing the writ or 

holding an evidentiary hearing. Frias-Gutierrez appealed.1

B. Aparicio and its progeny

On June 21, 2023, the Fourth Court of Appeals issued Ex parte Aparicio, 672 S.W.3d 696. 

In that case, a noncitizen (Aparicio), who had been arrested for criminal trespass in Maverick 

1 The appeal was transferred to this Court from the Fourth Court of Appeals pursuant to a Texas Supreme Court docket 

equalization order. Accordingly, we apply the Fourth Court of Appeals’ precedent to the extent it conflicts with our 

own. See TEX. R. APP. P. 41.3. 
3

County as part of OLS, filed a similar application for a pretrial writ of habeas corpus seeking 

dismissal of the charge against him, making an identical claim that the State was selectively 

prosecuting men under OLS in violation of his constitutional rights. Id. at 701. Unlike the present 

case, however, the trial court in Aparicio issued the writ and held a full evidentiary hearing on the 

question of whether the State had engaged in selective prosecution. Id. at 701–06. The trial court 

denied the writ on the merits despite undisputed evidence that the State was criminally prosecuting 

only male noncitizens for trespass under OLS, finding that Aparicio’s equal protection argument 

failed because the State could prosecute women if it “chose to.”2 Id. at 706. 

The Fourth Court of Appeals disagreed, finding Aparicio met his initial burden of 

establishing a prima facie case of selective prosecution, i.e., that “the prosecutorial policy had a 

discriminatory effect and that it was motivated by a discriminatory purpose.” Id. at 715. The burden 

then shifted to the State “to justify the discriminatory treatment.” Id. at 715 (citing Ex parte 

Quintana, 346 S.W.3d 681, 685 (Tex. App.—El Paso 2009, pet. ref’d)). Aparicio’s federal equal 

protection claim was subject to intermediate scrutiny; namely, the State had to demonstrate that its 

“discriminatory classification is substantially related to an important governmental interest.” Id. at 

708 (citing Clark v. Jeter, 486 U.S. 456, 461 (1988); Casarez v. State, 913 S.W.2d 468, 493 

(Tex. Crim. App. 1994) (en banc) (op. on reh’g)). And Aparicio’s state-based equal rights claim 

was subject to strict scrutiny; namely, the State had to demonstrate that its actions were “narrowly 

tailored to serve a compelling governmental interest.” Id. at 716 (citing In re Dean, 393 S.W.3d 

741, 749 (Tex. 2012)).

2 In particular, the trial court heard evidence that “as part of OLS, 4,076 people had been arrested for misdemeanor 

offenses and not a single individual arrested was a woman.” Ex parte Aparicio, 672 S.W.3d 696, 714 (Tex. App.—

San Antonio 2023, pet. granted). 
4

On appeal, the State argued “‘the emergency situation on Texas’s southern border’ justifies 

its discriminatory actions.” Id. at 716. However, the court of appeals noted that the trial court never 

reached the merits of that issue, as it determined Aparicio had not met his burden of establishing 

a prima facie case of selective prosecution on the basis of sex. Id. The court therefore reversed the 

trial court’s denial of Aparicio’s application for a writ of habeas corpus and remanded the matter 

to the trial court to “determine whether the State’s discriminatory classification was justified” 

under both constitutional claims.3 Id.

The Fourth Court of Appeals has since decided several cases involving OLS prosecutions 

of men. Recently, the court issued State v. Gomez, No. 04-22-00872-CR, 2023 WL 7552682 

(Tex. App.—San Antonio Nov. 15, 2023, no pet. h.) (not designated for publication) involving a 

similar claim of selective prosecution on the basis of sex made in an application for a pretrial writ 

of habeas corpus by another male noncitizen (Gomez) who had been arrested in Kinney County 

for criminal trespass as part of OLS. In that case, the trial court issued the writ, held an evidentiary 

hearing, then granted the writ. Id. at *1. The State appealed, conceding it had only arrested males 

at the border under OLS, but arguing its discriminatory actions were justified based on: “(1) 

Governor Abbott’s Proclamation declaring an emergency regarding border security; and (2) 

testimony that the counties implementing OLS do not have sufficient facilities to hold women 

detainees.”4 Id. at *5. The Fourth Court of Appeals rejected the State’s argument, finding that 

3 The State filed a petition for discretionary review of the Fourth Court of Appeals’ decision, which is currently 

pending. In the petition, the State argues the court erroneously concluded that Aparicio’s claim was cognizable in a 

pretrial writ of habeas corpus.

4 At the evidentiary hearing, Captain Joel Betancourt, who oversees the district in which participating OLS counties 

are located, testified that women were “always sent to immigration” because there was no “place to put them,” as “the 

local county jails have no capacity.” State v. Gomez, No. 04-22-00872-CR, 2023 WL 7552682, at *2 (Tex. App.—

San Antonio Nov. 15, 2023, no pet. h.) (not designated for publication).
5

although security at the border may be considered a compelling interest, the State did not 

demonstrate its actions were narrowly tailored to serve that interest. Id. The court noted OLS was 

a multi-billion-dollar operation, and the State did not explain why it could not have allocated funds 

for a facility to hold women. Id. The court therefore held that the trial court did not abuse its 

discretion in “concluding the State failed in its burden of justifying its discriminatory conduct 

under strict scrutiny, as required by Texas’s Equal Rights Amendment,” and it affirmed the 

decision to grant the petitioner his requested relief and dismiss his criminal case. Id.

C. The issues before us 

Here, the State does not deny Frias-Gutierrez was the subject of selective prosecution, nor 

does it attempt to justify its discriminatory actions. The State’s only argument on appeal is that the 

trial court lacked jurisdiction to hear Frias-Gutierrez’s application, contending that a claim of 

selective prosecution is not cognizable in an application for a pretrial writ of habeas corpus. We 

reject that argument in light of Aparicio and turn to the question of whether we have jurisdiction 

to hear Frias-Gutierrez’s appeal, and if not, whether we may treat his appeal as a petition for a writ 

of mandamus. And if treated as a mandamus petition, we must determine how that petition should 

be resolved. 

FRIAS-GUTIERREZ’S CLAIMS ARE COGNIZABLE IN A PRETRIAL

WRIT OF HABEAS CORPUS

We start with the State’s argument that Frias-Gutierrez’s claim of selective prosecution 

was not cognizable in a pretrial writ of habeas corpus. The State argues “[n]ot only is there no 

legal authority supporting the ruling, to grant such claims cognizability would cause cascading 

problems for Texas’ Courts.” The State acknowledges, however, that the Fourth Court of Appeals 

rejected the same argument in Aparicio. And the State offers no new authority; it simply contends 
6

Aparicio was wrongly decided, and we should resolve the issue differently. We disagree on both 

fronts and follow the on-point precedent of the Fourth Court of Appeals. See TEX. R. APP. P. 41.3 

(a transferee court must follow the precedent of the transferor court to the extent it conflicts with 

its own; in the opinion, the deciding court may indicate “whether the outcome would have been 

different” had it “not been required to decide the case in accordance with the transferor court’s 

precedent”); see also Brazos Elec. Power Coop., Inc. v. Texas Comm’n on Env’t Quality, 576 

S.W.3d 374, 382–83 n.6 (Tex. 2019) (an opinion issued by a transferor court remains binding 

precedent even though the case is pending on rehearing). 

Accordingly, we conclude that Frias-Gutierrez’s claim of selective prosecution is 

cognizable in a pretrial writ of habeas corpus.

THE TRIAL COURT’S ORDER IS NOT APPEALABLE

We must next consider whether Frias-Gutierrez has a right to appeal the trial court’s order 

denying his application for a writ of habeas corpus. We conclude he does not. 

Whether a trial court’s order denying an application for a writ of habeas corpus is 

appealable depends on whether the trial court ruled on the merits of the claim. An order denying 

an application for a writ of habeas corpus is only appealable when the trial court either grants or 

denies the relief requested in the application on its merits. See Ex parte Villanueva, 252 S.W.3d 

391, 394 (Tex. Crim. App. 2008) (recognizing that except as provided by statute, only when “there 

is a ruling on the merits of the claims may a losing party appeal” from the denial of a writ of habeas 

corpus); see also In re Perez, No. 04-23-00294-CR, 2023 WL 5270488, at *2 (Tex. App.—

San Antonio Aug. 16, 2023, no pet.) (mem. op., not designated for publication) (per curiam) 

(recognizing that an appeal is the proper remedy when a trial court denies an application for a writ 

of habeas corpus on the merits) (citing Ex parte Sifuentes, 639 S.W.3d 842, 846 (Tex. App.—
7

San Antonio 2022, pet. ref’d) (“If the record shows that the trial court heard evidence and 

addressed the merits, the result is appealable.”)).

In making a merits-based decision on an application for a writ of habeas corpus, a trial 

court generally issues the writ then considers evidence to determine whether the applicant’s claims 

have merit and whether the requested relief should be granted. See State v. Lara, 924 S.W.2d 198, 

203 (Tex. App.—Corpus Christi 1996, no pet.) (citing Ex parte Noe, 646 S.W.2d 230, 231 

(Tex. Crim. App. 1983)); see also TEX. CODE CRIM. PROC. ANN. art. 11.01 (“The writ of habeas 

corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued 

by a court or judge of competent jurisdiction, directed to any one having a person in his custody, 

or under his restraint, commanding him to produce such person, at a time and place named in the 

writ, and show why he is held in custody or under restraint.”).5 Thus, when a trial court refuses to 

issue a writ and does not issue a decision on the merits of the habeas claims, there is no right to 

appeal. Ex parte Noe, 646 S.W.2d at 231 (citing Ex parte Moorehouse, 614 S.W.2d 450, 451 

(Tex. Crim. App. 1981) (recognizing that there is “no appeal from a refusal to issue or grant a writ 

of habeas corpus”)); see also In re Perez, 2023 WL 5270488, at *2 (recognizing same in the 

context of an OLS challenge). 

Despite the usual process, a court is not required to formally issue a writ before making a 

merits-based decision on an application for a writ of habeas corpus. See Ex parte Villanueva, 252 

S.W.3d at 395 (recognizing that even when the trial court has not formally issued a writ, if the 

court rules on the merits, the trial court has “in effect, issued the writ”). And Frias-Gutierrez argues 

5 An applicant accused of committing a misdemeanor offense who has not been convicted of the offense may apply 

to the judge of the court in which the charge is pending. TEX. CODE CRIM. PROC. ANN. art. 11.09. 
8

that in his case, the court made a merits-based ruling on his habeas claims when it stated his 

application was “denied,” even though it did not formally issue a writ. We disagree.

The trial court’s order in Frias-Gutierrez case stated:

ON this day came on to be heard the Application for Pretrial Writ of Habeas Corpus 

filed in the above entitled and number cause. The Court having considered same is 

of the opinion same should be: 

 x the Application is denied without hearing and the writ is not issued 

 the Application is granted, and an in-person hearing will be held on 

 the Application is granted, and the merits will be heard by submission of 

evidence . . . 

Interpreting an order by the same trial court using virtually identical language in denying 

habeas relief to an applicant’s challenge to his OLS prosecution, the Fourth Court of Appeals held 

that the trial court did not consider the merits of the applicant’s habeas claims.6 In re MartinezJimenez, No. 04-23-00547-CR, 2023 WL 7005866, at *2 (Tex. App.—San Antonio Oct. 25, 2023, 

no pet. h.) (mem. op., not designated for publication) (per curiam). And because the record did not 

otherwise suggest the trial court considered the merits of the applicant’s habeas claims, the court 

found the trial court’s decision was not merits-based. Id. at *2 (citing Ex parte Sanchez-Hernandez, 

Nos. 13-22-00120-CR, 13-22-00121-CR, 2023 WL 3749555, at *2 (Tex. App.—Corpus Christi 

June 1, 2023, no pet.) (mem. op., not designated for publication) (per curiam) (“We review the 

entire appellate record to make the determination of whether a court’s denial is merit-based.”)); 

see also Ex parte Bowers, 36 S.W.3d 926, 927 (Tex. App.—Dallas 2001, pet. ref’d) (order and 

record may be considered to determine whether order was on the merits). 

6 In Martinez-Jimenez, the trial court’s order stated: “the Application is denied and the writ is not issued,” omitting 

the term “without hearing.” In re Martinez-Jimenez, No. 04-23-00547-CR, 2023 WL 7005866, at *2 (Tex. App.—San 

Antonio Oct. 25, 2023, no pet. h.) (mem. op., not designated for publication) (per curiam). We do not find this 

distinction sufficient to alter our interpretation of the order, as the order in Frias-Gutierrez’s case was identical in all 

other material respects. Id.
9

We similarly conclude that the order in Frias-Gutierrez’s case indicates the trial court did 

not issue the writ, hold a hearing, or consider the evidence Frias-Gutierrez submitted in support of 

his habeas application. And because we find nothing in the record to suggest that the trial court 

made a merits-based decision, we conclude Frias-Gutierrez has no right to appeal the trial court’s 

order.

WE TREAT THE APPEAL AS A PETITION FOR A WRIT OF MANDAMUS

Frias-Gutierrez urges that if we do not have jurisdiction to hear his appeal, we should, in 

the alternative, treat it as an original petition for a writ of mandamus. We agree. 

An appellate court may, in certain circumstances, treat an interlocutory appeal as a petition 

for writ of mandamus if requested to do so by the appellant. See CMH Homes v. Perez, 340 S.W.3d 

444, 452–53 (Tex. 2011); see also Hodge v. Kraft, 490 S.W.3d 510, 517 n.2 (Tex. App.—

San Antonio 2015, no pet.) (“the party seeking appellate review must specifically request that its 

appeal be treated as a mandamus petition”); In re Commitment of Renshaw, 672 S.W.3d 426, 427 

(Tex. 2023), reh’g denied (Sept. 1, 2023) (recognizing that an appellate court may treat a petition 

for a writ of habeas corpus as a petition for a writ of mandamus when the petitioner asks the court 

to do so, and that appellate courts have broad original jurisdiction to issue writs of mandamus

pursuant to TEX. GOV’T CODE ANN. § 22.221(b)). It would be an unnecessary waste of judicial 

resources and the parties’ time to require an appellant “to file a separate document with the title 

‘petition for writ of mandamus’ listed on the cover where the party has expressly requested 

mandamus treatment of its appeal in an uncertain legal environment.” CMH Homes, 340 S.W.3d 

at 453 (citing Wagner & Brown, Ltd. v. Horwood, 53 S.W.3d 347, 351 (Tex. 2001) (rejecting an 

“approach [that] catapults form over substance to deny appellate review on the merits”)). And the 

State does not provide any reasons why we should not treat Frias-Gutierrez’s appeal as a petition 
10

for a writ of mandamus in this instance. Accordingly, in the interest of judicial economy, we will 

treat it as such.7 Id.; see also Gruss v. Gallagher, Nos. 14-21-00178-CV, 14-21-00179-CV, and 

14-21-00180-CV, 2023 WL 1975016, at *14 (Tex. App.—Houston [14th Dist.] Feb. 14, 2023, no 

pet.) (treating appeal as petition for a writ of mandamus where appellant expressly requested such 

relief and it was in the interest of judicial economy to do so). 

RESOLUTION OF THE MANDAMUS PETITION

Our final step in the analysis is to determine how to resolve the petition. In a similar 

situation, an applicant brought an application for a pretrial writ of habeas corpus, challenging his 

prosecution for criminal trespass under OLS on equal protection grounds. In re Martinez-Jimenez, 

2023 WL 7005866, at *1. The trial court denied the application without issuing a writ and without 

deciding the merits of his selective prosecution claim prior to the Aparicio decision. Id. at *1–2. 

The applicant then filed an original petition for a writ of mandamus with the Fourth Court of 

Appeals asking it to order the trial court to issue the habeas writ and address the merits of his 

claims. Id.

In entertaining the petition, the Fourth Court of Appeals first noted that for “mandamus 

relief to be available in a criminal case, a relator must show two things: (1) that he has no adequate 

remedy at law, and (2) that what he seeks to compel is a ministerial act.” Id. at *1 (quoting 

Bonilla, 424 S.W.3d at 533); see also State ex rel. Young v. Sixth Jud. Dist. Ct. of App. at 

Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). The court found there 

was no adequate remedy at law because the trial court did not rule on the merits of the relator’s 

habeas claim, and as discussed above, he therefore had no right to appeal from the trial court’s 

7 Under the circumstances of this case, we have jurisdiction to consider the mandamus as a transferee court. See

Government Code § 73.002(a) (“The court of appeals to which a case is transferred has jurisdiction of the case without 

regard to the district in which the case originally was tried and to which it is returnable on appeal.”).
11

order denying his habeas application.8 Id. at *2. The court further recognized that the ministerialact requirement “is satisfied if the relator can show a clear right to the relief sought, which is shown 

when the facts and circumstances dictate but one rational decision under unequivocal, well-settled 

. . ., and clearly controlling legal principles.” Id. at *1 (quoting Bonilla, 424 S.W.3d at 533) 

(internal quotation marks omitted).

The court found it significant that the trial court issued its order declining to entertain the 

writ before the Aparicio opinion was issued, and the relator’s claims were similar (if not identical) 

to the claims made in Aparicio. Id. at *2 (citing Aparicio, 672 S.W.3d at 713). The court therefore 

found it appropriate to give the trial court “the opportunity to reconsider its decision not to issue 

the habeas writ, hold an evidentiary hearing, or rule on the merits of Relator’s application,” in light 

of the holding in Aparicio. Id. (citing Ex parte Lizcano, No. WR-68,348-03, 2018 WL 2717035, 

at *1 (Tex. Crim. App. June 6, 2018) (not designated for publication) (per curiam) (remanding 

case to trial court, in light of new authority, “to allow it the opportunity to develop evidence, make 

new or additional findings of fact and conclusions of law, and make a new recommendation” to 

the Court of Criminal Appeals)); see also In re Van Waters & Rogers, Inc., 988 S.W.2d 740, 741 

(Tex. 1998) (orig. proceeding) (per curiam) (denying mandamus relief to allow trial court to 

reconsider decision in light of new precedent); In re Cent. Oregon Truck Co., Inc., 644 S.W.3d 

668, 669 (Tex. 2022) (orig. proceeding) (per curiam) (same). And the court therefore denied the 

relator’s petition for writ of mandamus without prejudice to his “seeking relief, if necessary, after 

the trial court has had an opportunity to reconsider its ruling.” Id. at *3. 

We rule the same here.

8 The court also held that the relator’s request for mandamus relief was not moot given that it did not grant the relief 

requested in his mandamus petition, i.e., issue a writ and decide the claims in his habeas application on the merits. In 

re Martinez-Jimenez, 2023 WL 7005866, at *1–2. 
12

CONCLUSION

We remand to the trial court for it consider Frias-Gutierrez’s application for a pretrial writ 

of habeas corpus on the merits in light of the Fourth Court of Appeals’ holding in Aparicio and its 

progeny, and determine whether—at the time Frias-Gutierrez was arrested and charged with 

criminal trespass—the State was applying the criminal trespass statute under Operation Lone Star 

in an unconstitutional manner by selectively prosecuting males only without justification.9

We deny the petition for writ of mandamus without prejudice to Frias-Gutierrez’s ability 

to seek relief, if necessary, after the trial court has had an opportunity to reconsider its ruling.

 LISA J. SOTO, Justice

November 30, 2023 

Before, Palafox, and Soto, JJ., and Marion, C.J. (Ret.) 

Marion, C.J. (Ret.), sitting by assignment

(Do Not Publish) 

9 On remand, the trial court may only consider evidence of the State’s policy as it existed at the time of FriasGutierrez’s arrest in determining whether his constitutional rights were violated, and not evidence that the State may 

have changed its policy at a later date. See Ex parte Barahona-Gomez, No. 04-23-00230-CR, 2023 WL 6285324, at 

*2 (Tex. App.—San Antonio Sept. 27, 2023, no pet. h.). An applicant who was arrested and charged with criminal 

trespass while the discriminatory policy was in effect has already been treated “differently from similarly situated 

women on the basis of his sex by arresting and charging him” with trespass. See Ex parte Aparicio, 672 S.W.3d 696, 

715 (Tex. App.—San Antonio 2023, pet. granted) (citing Gonzales v. Police Dep’t, 901 F.2d 758, 762 (9th Cir. 1990) 

(“Curative measures simply do not tend to prove that a prior violation did not occur.”); Rich v. Martin Marietta Corp., 

522 F.2d 333, 346 (10th Cir. 1975) (explaining that conduct after the filing of charges “does not constitute cogent 

evidence of lack of prefiling discrimination” and if “taken into account at all, it might tend to show the existence of 

prior discrimination and an effort to repair the harm after discovery”)).