COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EX PARTE

JORGE JUAREZ,

Appellant.

§

§

§

§

§

No. 08-23-00159-CR

Appeal from the

346th Judicial District Court

of El Paso County, Texas

(TC# 20220D02497)

CONCURRING OPINION

I agree with the denial of Juarez’s pretrial petition for a writ of habeas corpus but for

different reasons. As I construe his position, Juarez contends the statutes providing for 17-yearolds to be prosecuted and convicted as adults are unconstitutional on their face and as applied to

him in that they cause (1) punishment as an adult upon conviction, and (2) pretrial confinement in

an adult facility rather than a juvenile facility. Before addressing the merits of Juarez’s challenges,

I would examine whether they are cognizable in the extraordinary procedural vehicle through 

which he raises them. In general, the cognizability of a constitutional challenge to a statute through

a pretrial writ of habeas corpus turns on whether success would result in the defendant’s immediate

release.1

1 See Ex parte Couch, 629 S.W.3d 217, 217 (Tex. Crim. App. 2021) (per curiam) (recognizing that a “pretrial writ

application is not appropriate when resolution of the question presented, even if resolved in favor of the applicant,
2

PUNISHMENT AS AN ADULT

To the extent Juarez bases his writ application on potential punishment in light of the

sentencing scheme resulting from prosecuting a 17-year-old as an adult, “[t]he constitutionality of

the sentencing statute will become an issue only if” Rodriguez “is found guilty . . . and

unconstitutionally sentenced, at which time he may raise his complaint on direct appeal.” Ex parte

Ragston, 402 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2013), aff’d sub nom. Ragston

v. State, 424 S.W.3d 49 (Tex. Crim. App. 2014); see also Ex parte Weise, 55 S.W.3d at 619–20

(discussing bringing issues via habeas corpus versus post-conviction appeals). Thus, if Juarez’s

present challenge regards his potential punishment as an adult if convicted, that as-applied

challenge is premature. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 919 (Tex. Crim. App.

2011) (holding that defendant’s as-applied challenge to the death penalty statute was premature

where he had neither been convicted or sentenced to death). Moreover, any challenge to the

constitutionality of the sentencing scheme is not cognizable in a pretrial writ of habeas corpus. For

“even if resolved in the defendant’s favor, [the question presented] would not result in [his] 

immediate release.” Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016). Accordingly, 

I would affirm the denial of his writ application and refrain from addressing the merits of Juarez’s 

purported challenge to the statutory sentencing scheme in the appeal before us.

PRETRIAL DETENTION IN AN ADULT FACILITY

To the extent Juarez bases his writ application on his pretrial detention in an adult facility,

I understand it as a constitutional challenge to his conditions of confinement under the Eighth 

would not result in immediate release.”) (citing Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001)); see 

also Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (“Except when double jeopardy is involved, pretrial

habeas is not available when the question presented, even if resolved in the defendant’s favor, would not result in

immediate release.”).
3

Amendment. I acknowledge the expert testimony (a) speaking to Juarez’s cognitive and 

psychosocial underdevelopment, and (b) intimating that detaining him in an adult facility does not 

provide the type of environment that would facilitate the realization of the penal system’s goals.

But Juarez has not cited any cases for the proposition that being detained in an adult facility as a

17-year-old—or even as a higher-needs, underdeveloped 17-year-old—prior to trial violates the 

Eighth Amendment. Nor am I aware of any.

A violation of one’s Eighth Amendment rights in terms of conditions of confinement

requires proof that a person is being deprived of the “minimal civilized measure of life’s

necessities.” Wilson v. Seiter, 501 U.S. 294, 298 (1991).

2

In his briefing, Juarez asserts he is 

“locked up” with more “hardened [adult] criminals” while awaiting trial and deprived of “the 

opportunities for rehabilitation and protections available in the juvenile system,” thereby raising 

the possibility that he will be too “hardened” to be rehabilitated if he has to remain in the adult 

system much longer. Even if Juarez is correct that an adult facility deprives 17-year-olds—and 

him specifically as a higher-needs, underdeveloped 17-year-old—of more appropriate 

rehabilitative options and protections offered in the juvenile system, what we must assess is 

whether this constitutes an Eighth Amendment violation. And Juarez has not shown how the 

conditions of his confinement rise to such a level.

Accordingly, I would uphold the trial court’s denial of Juarez’s application for a pretrial

writ of habeas corpus.

2 For example, to prove a claim of Eighth Amendment cruel and unusual punishment in the “prison-conditions” 

context, an incarcerated person must demonstrate that: (1) the deprivation alleged was “sufficiently serious”; and (2)

the prison official’s conduct constituted an unnecessary and wanton infliction of pain. Farmer v. Brennan, 511 U.S.

825, 834, (1994). Thus, an Eighth Amendment violation may occur when a prison official acts in “wanton disregard” 

for an inmate’s welfare in depriving them of a fundamental need, such as food, warmth, exercise or medical care. 

Wilson v. Seiter, 501 U.S. 294, 304 (1991); Estelle v. Gamble, 429 U.S. 97,104 (1976) (recognizing that an Eighth 

Amendment violation may be premised upon a deliberate indifference to an inmate’s “serious medical needs”).
4

LISA J. SOTO, Justice

April 22, 2024

Before Alley, C.J., Palafox and Soto, JJ.

Soto, J., concurring

(Do Not Publish)