Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-23-00808-CR

IN RE Sergio HERRERA CAMPOS

Original Proceeding1

PER CURIAM

Sitting: Patricia O. Alvarez, Justice

Luz Elena D. Chapa, Justice

Liza A. Rodriguez, Justice

Delivered and Filed: October 25, 2023

PETITION FOR WRIT OF MANDAMUS DENIED WITHOUT PREJUDICE

Relator, Sergio Herrera Campos, is a noncitizen who was arrested under Operation Lone 

Star and charged with the misdemeanor offense of criminal trespass. After his arrest, Relator filed 

a pretrial application for writ of habeas corpus. In the application, Relator requested the issuance 

of a habeas writ, an evidentiary hearing, and dismissal of his underlying charges because, he 

alleges, the charges violate equal protection principles. The trial court denied Relator’s habeas 

application on May 11, 2023, without issuing a writ or holding a hearing. Relator then filed the 

instant petition for writ of mandamus, requesting that we order the trial court to issue a habeas writ 

and rule on the merits of Relator’s habeas application.2

1 This proceeding arises out of Cause No. 10863CR, styled The State of Texas v. Sergio Herrera Campos, pending in 

the County Court, Kinney County, Texas, the Honorable Susan D. Reed presiding. 2 Relator also filed a motion to stay the underlying proceeding pending our final resolution of his mandamus petition, 

which we granted.
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MANDAMUS STANDARD

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.” In re Bonilla, 424 S.W.3d 528, 533 (Tex. Crim. App. 2014) (orig. proceeding); see State ex 

rel. Young v. Sixth Jud. Dist. Ct. App. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) 

(orig. proceeding). The ministerial-act 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.” Bonilla, 424 

S.W.3d at 533.

MANDAMUS JURISDICTION

We must first resolve whether the trial court ruled on the merits of Relator’s habeas 

application because if it did, then Relator has already received the relief requested in his mandamus 

petition, there is no actual controversy before the court that would be resolved by the judicial relief 

sought, this proceeding is moot, and the proper remedy is to appeal the order denying Relator’s 

habeas application—not to seek mandamus review. See id. at 534 (holding mandamus petition was 

moot where relator received relief sought); 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.”); State 

Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (“[J]urisdiction also depends on 

justiciability. And . . . for a controversy to be justiciable, there must be a real controversy between 

the parties that will be actually resolved by the judicial relief sought.”); James v. Hubbard, 21 

S.W.3d 558, 560 (Tex. App.—San Antonio 2000, no pet.) (stating that under the mootness doctrine 

there must be an actual controversy between the parties at all stages of the proceedings); see also 

Bell v. State, 515 S.W.3d 900, 901 (Tex. Crim. App. 2017) (per curiam) (citation omitted) 

(“Appellate courts must review jurisdiction regardless of whether it is raised by the parties.”). 
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The trial court’s order is comprised of several options it can select as circumstances 

warrant. Here, the trial court chose the following:

The Court having considered [the application] is of the opinion same should be:

x the Application is denied without issuing writ[.]

The trial court did not select the following options:

 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. . . . 

Neither the trial court’s order nor the mandamus record suggest that the trial court ruled on 

the merits of Relator’s equal protection claim. See Ex parte Sanchez-Hernandez, Nos. 13-22-

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

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

record to make the determination of whether a court’s denial is merit-based.”); Ex parte Bowers, 

35 S.W.3d 926, 927 (Tex. App.—Dallas 2001, pet. ref’d) (holding that order and record may be 

considered to determine whether order was on the merits). Instead, the trial court’s order indicates 

that Relator’s habeas application was denied without issuing the writ or 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 has not received the relief he seeks in the petition he filed in this court, and 

there remains a live controversy. See In re Lara Belmontes, No. 04-23-00293-CR, 2023 WL 

5249618, at *2 (Tex. App.—San Antonio Aug. 16, 2023, orig. proceeding). 

ANALYSIS

In his mandamus petition, Relator argues that the trial court had a ministerial duty to issue 

a writ and rule on the merits of his equal protection claim. If Relator’s underlying habeas claim is 
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cognizable, he may be entitled to relief. See Click v. State, 39 S.W.2d 39, 41 (Tex. Crim. App. 

1931); Lara Belmontes, 2023 WL 5249618, at *2; In re Solis, No. 04-04-00050-CV, 2004 WL 

1336266, at *1 (Tex. App.—San Antonio June 16, 2004, orig. proceeding).

On June 21, 2023, we issued an opinion holding that a selective-prosecution equal 

protection claim is cognizable in a pre-trial application for writ of habeas corpus. See Ex parte 

Aparicio, 672 S.W.3d 696, 713 (Tex. App.—San Antonio 2023, pet. granted) (en banc). Relator 

asserts a similar claim here. In light of our recent decision, we believe the trial court should have 

an opportunity to reconsider its decision not to issue the habeas writ, hold an evidentiary hearing, 

or rule on the merits of Relator’s application. See id.; see also Ex parte Lizcano, No. WR-68,348-

034, 2018 WL 2717035, at *1 (Tex. Crim. App. June 6, 2018) (per curiam, not designated for 

publication) (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); accord 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); In re Cent. Or. Truck 

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

CONCLUSION

We deny the petition for writ of mandamus without prejudice to Relator’s seeking relief, if 

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

PER CURIAM

DO NOT PUBLISH