# Fourth Court of Appeals **San Antonio, Texas**
MEMORANDUM OPINION
No. 04

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IN RE Luis Chavez OROZCO Original Proceeding 1
PER CURIAM Sitting: Luz Elena D. Chapa, Justice Liza A. Rodriguez , Justice Lori I. Valenzuela , Justice Delivered and Filed: August 23, 2023
PETITION FOR WRIT OF MANDAMUS DISMISSED IN PART AND DENIED WITHOUT PREJUDICE IN PART Relator is a noncitizen who was arrested under Operation Lone Star, p rocessed, and released on bond. After his bonded release, relator was removed to Mexico . Following his removal,

r elator filed an application for writ of habeas corpus
. He sought the issuance of a writ, an evidentiary hearing , and dismissal of his underlyin g charges because, he alleges, the charges violate equal protection principles

. The trial court denied relator’s habeas application , without issuing a writ or holding a hearing . Relator filed this mandamus proceeding arguing the trial court erred by denying his application for writ of habeas corpus without issuing the habeas writ or holding a hearing. 2

1 This proceeding arises out of Cause No. 31326 , styled State of Texas v. Luis Chavez Orozco , pending in the County Court , Maverick County, Texas, the Honorable Susan D. Reed presiding. 2 Relator also filed a motion to sta y the underlying proceeding pending our final resolution of his mandamus petition, which we granted in part by staying all pretrial settings requiring relator’s in

- person appearance.04

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- 2 - For mandamus relief to be available in a criminal case, a relator “must show that he has no adequate remedy at law to redress his alleged harm” and “that what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision.” See State ex rel. Young v. Sixth Jud

. Dist. Ct. of Apps. at Texarkana , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig

. proceeding) ; In re City of Lubbock , 666 S.W.3d 546, 554 (Tex. Crim. App. 2023) (orig. proceeding) (“ Mandamus relief is available for a novel issue or one of first impression with uncontested facts when the law points to but one clear result. ”). We first address whether this proceeding is moot. The State argues that because the trial court issued a ruling on relator’s habeas application, his mandamus petition is moot. See In re Bonilla , 424 S.W.3d 528, 534 (Tex. Crim. App. 2014) (orig. proceeding) (holding mandamus petition was moot where relator received relief sought).
T he trial court’s order is comprised of several options to choose from depending on the trial court’s ruling and whether the ruling is one on the merits. Here, the trial court chose the fol lowing: The Court having considered [the Application] is of the opinion same should be: X the Application is denied without issuing the writ. The trial court did not select options for: the Application is granted, an order issuing the writ and hearing to be held . the Application is granted with an order issuing the writ, and the merits will be heard by submission of evidence under the following schedule. . . . We hold this mandamus proceeding is not moot as to relator’s request for the issuance of a writ. It is apparent from the trial court’s order that relator did not receive the issuance of a writ or the evidentiary hearing he sought. Instead, the order shows the trial court affirmatively rejected the issuance of a writ, an evidentiary hearing, and the submission of written evidence by refusing selections corresponding with these actions. Additionally , the mandamus record does not show04

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- that the trial court issu e d a writ or held an evidentiary hearing, and the State does not assert otherwise.
Th e trial court’s order and record also do not suggest that the trial court rule d on the merits of relator’s equal protection claim. I f the trial court ruled on the merits o f relator’s habeas application, then the proper remedy is to appeal the order denying relator’s h abeas application

— not to seek mandamus review. See Ex parte Villanueva , 252 S.W.3d 391, 395 (Tex. Crim. App. 2008) (“[A]n appeal may be prosecuted when a judge issues a ruling on the merits.”); Ex parte Sifuentes , 639 S.W.3d 842, 846 (Tex. App.

— San Antonio 2022, pet. ref’d) (citation omitted) (“ If the record shows that the t rial court heard evidence and addressed the merits, the result is appealable. ”)

. Here, there is no indication the trial court ruled on the merits of relator’s equal protection claim

. Instead, the trial court’s order indicates that relator’s petition was de nied without the development or consideration of an evidentiary record. Because the trial court did not issue a writ or rule on the merits of relator’s habeas application, relator did not receive the relief he sought from the trial court , and there remains a live controversy. See Winkler v. State , 252 S.W.2d 944 (Tex. Crim. App. 1952) ( holding case moot where issues raised had become moot)

. Next, r elator contends mandamus is proper to direct the trial court to issue a writ and to rule on the merits of his e qual protection claim. See T EX
. C ODE C RIM
. P RO C

. A NN . art. 11.15 (upon receiving an application for writ of habeas corpus, a trial court shall issue the writ “unless it be manifest from the petition itself, or some documents annexed to it, that the party i s entitled to no relief whatever.”). If relator’s underlying habeas claim is cognizable, he may be entitled to relief. See id. ; Click v. State , 39 S.W.2d 39, 41 ( Tex. Crim. App. 1931) (“ Where one entitled to a writ of habeas corpus makes proper application for it to the proper court having jurisdiction, said application conforming to all the statutory requirements and probable cause being shown, the writ of habeas corpus cannot be denied to the relator, for it then becomes a constitutional right. ”); see04

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- also Ex parte Perry , 483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (non

- exclusive list of claims that are cognizable in a pretrial writ of habeas corpus). On June 21, 2023, we issued an opinion holding that a selective

- prosecution equal protection cl aim is cognizable in a pre

- trial application for writ of habeas corpus. See Ex parte Aparicio , No. 04

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- 00632

- CR, 2023 WL 4095939 , at *11 (Tex. App.

— San Antonio June 21, 2023, pet. filed ) (en banc)

. Relator asserts a similar claim. In light of our recent decision, w e believe the trial court should have an opportunity to reconsider its decision to deny relator’s habeas application without issuing a writ

. See id. ; Ex parte Lizcano , No. WR

- 68,348

- 03, 2018 WL 2717035, at *1 (Tex. Crim. App. June 6, 2018) (per curiam) (not designated for publication) ( remanding case , in light of new authority, to trial court “t o allow it the opportunity to develop evidence, make new or additional findings of fact and conclusions of law, and make a new recommendation to thi s Court [.]”) ; In re Van Waters & Rogers Inc ., 988 S.W.2d 740, 741 (Tex. 1998) (orig. proceeding) (per curiam) (denying mandamus relief in order to allow trial court to reconsider decision in light of new precedent) ; accord In re Cent. Oregon Truck Co., Inc

. , 644 S.W.3d 668, 671 (Tex. 2022) (orig. proceeding) (per curiam)

. Therefore, relator’s mandamus petition is denied without prejudice to relator again requesting relief from this court after the trial court has an opportunity to reconsider its ruling.
Fin ally, because of the stay granted by this court, relator’s complaint about his required in

person attendance at the April 4 , 2023 pretrial hearing is moot. See Bonilla , 424 S.W.3d at 534.
PER CURIAM
DO NOT PUBLISH