Ex Parte Alejandro Rivera Saavedra v. the State of Texas

CONCUR; DISSENT and Opinion Filed August 8, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00216-CR

EX PARTE ALEJANDRO RIVERA SAAVEDRA

On Appeal from the County Court
Kinney County, Texas
Trial Court Cause No. 11350CR

CONCURRING AND DISSENTING OPINION
Before Justices Reichek, Carlyle, and Miskel
Concurring Opinion by Justice Miskel
This case was transferred to this Court by the Texas Supreme Court pursuant

to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. I agree with

the majority that under Rule 41.3 of the Texas Rules of Appellate Procedure we are

bound to follow the Operation Lone Star (OLS) precedent of the Fourth District

Court of Appeals. TEX. R. APP. P. 41.3. We must stand in the shoes of the transferor

court so that this transfer case will not produce a different outcome. Id. 41.3 cmt.
However, while I acknowledge that we are required to follow the OLS

precedent of the Fourth District Court of Appeals, I write separately for three

reasons:

(1) This case involves new arguments and evidence compared to the
prior OLS cases decided by the Fourth District Court of Appeals.
Because it concerns issues of first impression that are now being
decided by a different court of appeals, the transfer of this case
is problematic.1 However, there is no mechanism by which we
may return transferred cases involving matters of first impression
back to the transferring court of appeals.

(2) I believe this case (and each similar case) must be analyzed by
examining the record, reviewing the evidence that was actually
admitted in the light most favorable to the habeas court’s
findings, and affirming the habeas court’s ruling unless it was an
abuse of discretion. I disagree with the majority’s suggestion
that resolution of the ultimate question in this case turns only on
a de novo application of the Fourth District Court of Appeals’
prior legal standards. Analysis of OLS cases cannot be rubber-
stamped.

(3) Finally, I disagree with how the Fourth District Court of Appeals
analyses sex-discrimination claims under the Texas Constitution
in OLS cases.

I note that Rivera Saavedra has raised only an as-applied challenge to OLS.

He concedes the general constitutionality of the Proclamation but asserts that the

Proclamation is unconstitutional as applied to his particular facts and circumstances.

See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).

1
See also Ex parte Vallesteros, No. 06-24-00040-CR, 2024 WL 1632070, at *10 (Tex. App.—
Texarkana Apr. 16, 2024, pet. filed) (mem. op., not designated for publication) (Rambin, J., concurring and
dissenting) (noting case has three things no prior Fourth District Court of Appeals OLS decision has had).
–2–
Therefore, nothing in this case should be construed as a determination that OLS is

generally unconstitutional.

I. Procedural Background

On August 7, 2021, pursuant to OLS, a Texas Department of Public Safety

(DPS) trooper arrested six men, including Rivera Saavedra, who is a Cuban national,

in Kinney County, for trespassing on private property. As a result, Rivera Saavedra

was charged by information with misdemeanor criminal trespass under §§ 30.05 and

12.50 of the Texas Penal Code. The information alleged that the offense was

committed in an area that was subject to a declaration of a state of disaster made by

the Governor pursuant to § 418.014 of the Texas Government Code.

Rivera Saavedra filed a verified pretrial application for a writ of habeas

corpus, claiming that the State was restraining his liberty and seeking discharge and

dismissal of the charges against him. He sought the pretrial writ of habeas corpus

on the grounds that the State had violated his equal-protection rights under article 1,

§ 3a, of the Texas Constitution and the Fourteenth Amendment of the United States

–3–
Constitution by engaging in selective enforcement2 based on sex discrimination3

because: (1) the State does not enforce criminal-trespass laws against similarly

situated women; (2) OLS is motivated by a discriminatory purpose; and (3) the State

cannot adequately justify its discriminatory purpose under either the requirements

of either intermediate scrutiny under the United States Constitution or strict scrutiny

under the Texas Constitution. Attached to his application were the following

exhibits:

 The Governor’s proclamation declaring a state of disaster in thirty-
four counties located on the Texas–Mexico border.

 The declaration of Claudia Molina of the Lubbock Private
Defender’s Office stating, in part, she is unaware of any women who
have been prosecuted for misdemeanor trespass as a part of OLS.

 A notice of stipulation filed in State v. Gonzales-Morales, No.
2022CRB000722L1, County Court, Webb County, Texas, in which
the State stipulated that “women are not prosecuted for trespass as
part of [OLS], even when they are found trespassing” and Gonzalez-
Morales stipulated that “women require separate housing and
staffing separate from adult male detainees.”

2
I note that Rivera Saavedra has referred to his claim as a selective-prosecution claim throughout the
habeas corpus proceedings even though he argues the State has chosen to selectively enforce its trespass
laws based on the sex of the defendant. While courts have at times deployed the terms “selective
prosecution” and “selective enforcement” interchangeably, “selective prosecution” and “selective
enforcement” are distinct claims. Ex parte Marcos-Callejas, No. 04-23-00327-CR, 2024 WL 2164653, at
*2 (Tex. App.—San Antonio May 15, 2024, no pet.). Selective prosecution occurs when, from among the
pool of people referred by police, a prosecutor pursues similar cases differently based on an impermissible
consideration. Id. On the other hand, selective enforcement occurs when law-enforcement officials make
decisions regarding who to investigate, arrest, or refer for potential prosecution based on an impermissible
consideration such as race or gender. Id. Accordingly, I will refer to Rivera Saavedra’s claim as a selective-
enforcement claim throughout my concurring and dissenting opinion.
3
Although the parties and the habeas court refer to this as a case involving “gender discrimination,”
the claims involve discrimination based on biological sex. Further, the text of the Texas Constitution
protects equality on the basis of “sex.” TEX. CONST. art. 1, § 3a. Therefore, I refer to the claims in this
case as sex-discrimination claims throughout my concurring and dissenting opinion.
–4–
 The affidavit of Tom Schmerber, Sheriff of Maverick County,
Texas, stating, in part, that he was told by DPS that only men would
be arrested for criminal trespass pursuant to OLS even though the
Maverick County jail has the ability to house females.

The habeas court granted the application and ordered the parties to submit

evidence. Rivera Saavedra filed a summary of his evidence from his application and

attached the following additional exhibits:

 A letter from the Governor to OLS judges that outlined his policy
objectives and the funding for OLS.

 Two news articles relating to OLS.

 A letter from the Governor to law enforcement agency heads
relating to the transfer of funds to support OLS.

 The meeting minutes of the Texas Board of Criminal Justice (TBCJ)
summarizing an update provided by the Texas Department of
Criminal Justice (TDCJ) executive director about OLS.

 A transcript of the testimony of Molina, DPS South Texas Region
Captain Joel Betancourt, Omar Saucedo (a social worker), and DPS
troopers Osvaldo Guajardo, Brandon Aquino, and Valentin Cantu
during a writ hearing held in State v. 11/18/2022 OLS Docket, No.
13763CR, County Court, Kinney County Texas.

 An email from Captain Betancourt to other DPS officers outlining
the OLS policy and providing examples of a few possible scenarios
that might be encountered.

 An order in State v. Cirino Gregeda, No. 13784CR, County Court,
Kinney County, Texas, granting relief in a habeas corpus proceeding
and ruling that the OLS policy is discriminatory and the State does
not have a valid justification.

 Personal bonds that were given to female defendants in Kinney
County criminal-trespass cases.

–5–
The Kinney County Attorney’s Office filed a response on behalf of the State

arguing the criminal-trespass statute is facially neutral, Rivera Saavedra has not

shown that equal protection is being denied on a state-wide basis, and the State’s

policy serves a legitimate state interest. Attached to the State’s response were the

following:

 The affidavit of DPS South Texas Regional Director Victor Escalon
explaining why non-elderly males were arrested from
approximately July 20, 2021, until November 2022 for criminal
trespass, but not women, family units, or the elderly. In particular
he explained that DPS personnel were not able to easily distinguish
between female trespassers and those being trafficked as well as the
need to keep unaccompanied children and family units together.4

 The affidavits of several border-county residents describing the
dangers to the life and property of the landowners, and the dangers
to the health and life of the trespassers.

 A transcript of the testimony of DPS South Texas Region Captain
Betancourt during a writ hearing held in State v. Excerpt of
11/18/2022 OLS Docket, County Court, Kinney County Texas.

 Several criminal complaints, probable-cause affidavits,
informations, and arrest warrants among other legal documents
against women for criminal trespass in Kinney County beginning in
September 2023.

 Numerous photographs depicting acts of criminal trespass, deceased
individuals and animals, and destruction of property.

4
Further, I note that, while DPS South Texas Regional Director Escalon’s affidavit reflects that in
November 2022—over a year after Rivera Saavedra was arrested—the State changed its OLS policy and
has been housing adult females for criminal trespass and using the county jails in Zapata, Webb, Jim Hogg,
and Maverick counties, the Fourth District Court of Appeals has already held, as a matter of law, that any
such change has no bearing on an applicant’s selective-enforcement claim, as the only evidence relevant to
an applicant’s selective-enforcement claim is that which existed at the time of the applicant’s arrest. Ex
parte Barahona-Gomez, No. 04-23-00230-CR, 2023 WL 6285324, at *2 (Tex. App.—San Antonio Sept.
27, 2020, pet. filed) (mem. op., not designated fro publication).
–6–
On January 20, 2024, the merits of the writ were tried by submission.5 In its

order denying relief, the habeas court stated that all of the exhibits submitted by both

parties were admitted into evidence. The habeas court also made findings of fact,

which are summarized as follows:

 Rivera Saavedra’s claims are based on the implementation of the
Texas criminal trespass statute at it relates to the border counties and
illegal immigration, not as it is implemented throughout Texas.

 Governor Abbott has issued a Proclamation of Disaster for the
border and it remains in effect.

 The Proclamation speaks for itself.

 The Governor’s purpose as stated in the Proclamation speaks for
itself.

 The affidavit of DPS South Texas Regional Director Escalon is
admitted for the history of the OLS and is deemed truthful.

 Disregarding any hearsay, the affidavits of the landowners establish
the validity of the declared emergency and disaster.

 OLS was established as a funding mechanism to support law
enforcement in relation to the surge of crime on the border including

5
Both the Texas Constitution and the Texas Government Code prohibit a court from rendering a
judgment holding a statute unconstitutional until the Attorney General has been given notice of the
challenge and has had a reasonable opportunity to inform the court of the State’s position on the matter.
TEX. CONST. art. 5, § 32; TEX. GOV’T CODE ANN. § 402.010. Although the Texas Constitution and
§ 402.010 expressly refer to constitutional challenges to a statute, § 418.012 of the Texas Government Code
provides that the governor may issue executive orders, proclamations, and regulations which have the force
and effect of law, and some courts have interpreted them to also apply to constitutional challenges to
executive orders. See generally Ex parte Larue, No. 12-20-00269-CR, 2021 WL 2816412, at *1 n.3 (Tex.
App.—Tyler June 30, 2021, no pet.) (mem. op., not designated for publication) (noting that pursuant to
§ 402.010, it notified Texas Attorney General’s Office of appellant’s constitutional challenge to Governor’s
executive order but received no response from that office). Here, the record does not show that the Texas
Attorney General’s Office was notified of Rivera Saavedra’s challenge to the constitutionality of the
Governor’s proclamation when the matter was raised in the habeas court or on appeal. Instead, the Kinney
County Attorney’s Office has been the sole representative and voice of the State with respect to the
constitutionality of the Governor’s proclamation in this case. I would notify the Texas Attorney General’s
Office of Rivera Saavedra’s constitutional challenge, send it copies of the parties’ briefing, and permit it a
period of time in which to respond.
–7–
human smuggling, trafficking, and trespass as it relates to an
unprecedented number of illegal crossings of immigrants.

 The Texas border counties are rural.

 The Texas border counties’ jails are small and unable to house the
number of individuals arrested for crimes targeted by OLS.

 Because of the small jails, law enforcement made decisions on
whether to charge under State law or whether to turn over to federal
authorities for their prosecution those individuals detained on
private property without the owner’s permission.

 When those decisions were made, consideration was given not only
to sex but also to who was traveling with whom, i.e., the family
situation, age, and children.

 The factors taken into consideration were not treated individually
but as a composite of the factors relating to the specific person.

 Included in the factors taken into consideration was the availability
of space permitted under jail standards and whether the offense was
a felony or a misdemeanor.

 Both sexes were arrested under OLS from its inception.

 Both men and women were released to federal authorities as
opposed to just women.6

 The decisions made at the time of arrest were not based solely on
sex.

 The charging decisions made by OLS law enforcement were done
not with purposeful discrimination but to be able to immediately
deal with the situation at hand during a state of emergency and
disaster.

6
I note that the habeas court’s findings of fact states, “Both men and women were released to federal
authorities as opposed to just men.” However, it is clear from the record that this was a typographical error
and the last word of the quoted finding was intended to be “women.”
–8–
 There was a danger to life and property, lack of housing availability
and a humanitarian purpose not to re-victimize trafficked
individuals or deprive children of guardians.

 Law enforcement’s actions further a legitimate governmental
objective and interest.

The habeas court also made conclusions of law, summarized as follows:

 Rivera Saavedra established a prima facie claim of selective
enforcement based on sex discrimination;

 The State has rebutted that prima facie claim; and

 The State met its burden of justification.

This interlocutory appeal of the habeas court’s order denying Rivera Saavedra

relief on the merits followed. See Ward v. State, 662 S.W.3d 415, 416 & n.2 (Tex.

Crim. App. 2020) (concluding if habeas court denies relief on merits, defendant may

file interlocutory appeal and noting whether defendant’s grounds for relief are

cognizable is different matter).

II. This Record Includes New Evidence and Arguments from the State

Rivera Saavedra claims that the habeas court’s conclusions “hinged on its

finding that the counties lacked housing for women” and the State failed to establish

that its multi-billion-dollar budget did not allow it to increase detention capacity for

women before his arrest. Both Rivera Saavedra and the majority rely on Ex parte

Aparicio, 672 S.W.3d 696, 708 (Tex. App.—San Antonio 2023, pet. granted), and

its progeny as support for the proposition that the habeas court erred when it

concluded that the State rebutted Rivera Saavedra’s claim of sex discrimination and

that the State justified its OLS policy. I disagree with the claim that this case
–9–
involves the same arguments and evidence as the prior OLS cases decided by the

Fourth District Court of Appeals and that resolution of the ultimate question in this

case turns only on an application of these prior legal standards. See Diamond v.

State, 613 S.W.3d 536, 544 (Tex. Crim. App. 2020) (standard of review for habeas

rulings).

While I agree that prior OLS opinions from the Fourth District Court of

Appeals have held that the State failed to meet its burden to justify a discriminatory

policy, each of those cases was determined based on the specific arguments and

evidence presented by the State, or the lack thereof. A review of these cases shows

that the Fourth District Court of Appeals has not reached its conclusions solely as a

matter of law:

 In Ex parte Aparicio, 672 S.W.3d at 711–16, the court of appeals
noted that the State did not call any witnesses or introduce any
evidence to support the State’s argument that the emergency
situation on the border justified its discriminatory actions and the
facts were undisputed. It concluded that the habeas court never
reached the merits of the case and remanded it so that the habeas
court could have an opportunity to determine whether the State’s
discriminatory classification was justified.

 In Ex parte Barahona-Gomez, No. 04-23-00230-CR, 2023 WL
6285324, at *1 (Tex. App.—San Antonio Sept. 27, 2023, pet. filed)
(mem. op., not designated for publication), the court of appeals
reversed and remanded the case for an evidentiary hearing to allow
the applicant to present a prima facie case, noting that the habeas
court denied the application for habeas corpus without an
evidentiary hearing and made an explicit finding based on the
habeas judge’s personal knowledge.

 In State v. Gomez, No. 04-22-00872-CR, 2023 WL 7552682, at *5
(Tex. App.—San Antonio Nov. 15, 2023, pet. filed), and State v.
–10–
Garcia Compean, No. 04-22-00886-CR, 2023 WL 8104870, at *1–
2 (Tex. App.—San Antonio Nov. 22, 2023, pet. filed) (mem. op.,
not designated for publication), which were heard by the habeas
court at the same time, the court of appeals noted that the State did
not call any witnesses or introduce any evidence but relied on the
applicants’ evidence that included the Governor’s proclamation and
testimony that the counties implementing OLS do not have
sufficient facilities to hold women detainees and concluded it was
insufficient to justify the State’s discriminatory policy.

 In Ex parte Rodriguez Rodas, No. 04-22-00885-CR, 2023 WL
8103194, at *1 (Tex. App.—San Antonio Nov. 22, 2023, pet. filed)
(mem. op., not designated for publication), the court of appeals
noted that the habeas court found there was no evidence that the
discrimination based on sex served an important governmental
objective, no evidence was offered to establish that the
discrimination was substantially related to the achievement of
important governmental objectives, and the State failed to produce
evidence about the feasibility, or lack thereof, of an alternative.

 In Ex parte Vasquez-Bautista, 683 S.W.3d 504, 514 (Tex. App.—
San Antonio 2023, pet. filed) (en banc), the court of appeals
concluded the State failed to justify its discriminatory conduct
because the State relied only on the Governor’s proclamation and
the parties’ stipulation that women require separate housing from
adult males detainees and, even though given the opportunity, it
failed to present any evidence regarding the feasibility of the State’s
bearing the financial burden of arresting, housing, and prosecuting
women, as it did by modifying its existing facilities to house male
detainees.

 In Ex parte Gonzalez-Morales, No. 04-22-00629-CR, 2023 WL
8793121, at *3 (Tex. App.—San Antonio Dec. 20, 2023, no pet.)
(mem. op., not designated for publication), the court of appeals
concluded that the State failed to meet its burden of justifying the
discriminatory conduct because, in other cases, the court of appeals
had already rejected the State’s reliance on the Governor’s
proclamation and testimony that the counties implementing OLS do
not have sufficient facilities to hold women detainees as a
compelling interest.

–11–
 In Ex parte Molina Valencia, No. 04-23-01044-CR, 2024 WL
1642923, at * (Tex. App.—San Antonio Apr. 17, 2024, no pet. h.),
the court of appeals noted that the State did not call any witnesses
or introduce any evidence at the habeas hearing to show how DPS’s
policy, pursuant to OLS, of arresting and referring men, but not
similarly situated women, for prosecution is narrowly tailored or
substantially related to its interest in protecting it citizens.

These cases were decided based on the evidence actually presented to the habeas

courts to support the State’s justifications for its policies. And the evidentiary record

in this case differs from each of those cases.

In this case, the State offered two new humanitarian purposes—to avoid

(1) re-victimizing trafficked individuals or (2) depriving children of guardians—as

well as evidence that has not previously been addressed by the Fourth District Court

of Appeals.7 The State offered this evidence to rebut Rivera Saavedra’s prima facie

claim of selective enforcement, to show that the policy did not discriminate because

of sex, and also to show justifications for the policy. The Fourth District Court of

Appeals has not yet addressed whether evidence of these two new policy objectives

rebuts a selective-enforcement claim.

III. Ex Parte Aparicio’s Analysis Misses a Step

Because we are required to follow the Fourth District Court of Appeals’

decision in Ex parte Aparicio, I must concur in the judgment. However, I believe

7
As in the other Fourth District Court of Appeals’ OLS decisions, the State also presented evidence
and argued that its OLS policy was justified under both intermediate and strict scrutiny based on the
Governor’s proclamation, the lack of pretrial facilities to hold women, border security, and public health.
I acknowledge that the Fourth District Court of Appeals has rejected the State’s use of this evidence to
justify policies that discriminate based on sex.
–12–
Ex parte Aparicio misapplied the analysis required for a sex discrimination claim

under the Texas Equal Rights Amendment.

A. Three Steps to Evaluate Sex-Discrimination Claims Under the Texas
Constitution

The Texas Constitution provides heightened protection against sex-based

discrimination. The Equal Rights Amendment specifies that sex, race, color, creed,

and national origin are protected classes and grants additional protection against sex-

based classifications. TEX. CONST. art. 1, § 3a; Bell v. Low Income Women of Tex.,

95 S.W.3d 253, 257, 262 (Tex. 2002); Gomez, 2023 WL 7552682, at *5. Therefore,

a state equal-protection claim on the basis of sex discrimination is subject to strict

scrutiny. See Bell, 95 S.W.3d at 257–58 (citing In re McLean, 725 S.W.2d 696, 697

(Tex. 1987)).

Evaluating an Equal Rights Amendment violation is a three-step process. Id.

at 257 (citing In re McLean, 725 S.W.2d at 697). Step One—a court decides whether

equality under the law has been denied. Id. Step Two—the court must determine

whether equality under the law was denied because of the person’s membership in a

protected class of sex, race, color, creed, or national origin. Id. Step Three—if a

court concludes that equality was denied because of a person’s membership in a

protected class, the challenged action cannot stand unless the government proves it

is narrowly tailored to serve a compelling governmental interest. Id.

–13–
B. Related Example—Batson Challenges

A related example is useful to illustrate how courts apply the three-step

process to determine whether government actions violate the Equal Rights

Amendment. In Batson8 challenges relating to sex discrimination, the movant must

first make a prima facie case that the State used sex-based criteria in exercising

peremptory strikes. Benito Guzman v. State, 85 S.W.3d 242, 246 (Tex. Crim. App.

2002). Then, the burden shifts to the State to articulate a sex-neutral explanation for

each strike. Id. The State can even express a mix of both discriminatory and neutral

motives—“dual motivation is a defense which rebuts the opponent’s prima facie

case of purposeful discrimination.” Id. at 249, 253. Finally, if a sex-neutral

explanation is offered, the trial court must decide whether the opponent has proved

purposeful discrimination. Id. at 246.

In Benito Guzman, the State’s attorney explained that he struck a potential

juror because he was single, male, had no children, and fell asleep or shut his eyes

for extended periods of time. The Texas Court of Criminal Appeals held that,

although sex was a reason for the strike, the record did not show that the trial court

completed steps two or three of the Batson process to determine whether sex

discrimination was the “controlling” reason for the strike, so the case was remanded

for further proceedings. Id. at 254–55.

8
Batson v. Kentucky, 476 U.S. 79 (1986).
–14–
C. Ex Parte Aparicio’s Abbreviated Two-Step Analysis in OLS Cases

In Ex parte Aparicio, the Fourth District Court of Appeals impliedly held that

the second “because-of” step does not apply to a strict-scrutiny analysis of OLS. Ex

parte Vallesteros, No. 06-24-00040-CR, 2024 WL 1632070, at *11 (Tex. App.—

Texarkana Apr. 16, 2024, pet. filed) (mem. op., not designated for publication)

(Rambin, J., concurring and dissenting). In Ex parte Aparicio, the Fourth District

Court of Appeals set out a two-step process for analyzing selective-enforcement

claims. That court held that the defendant in a criminal case bears the burden of

establishing a prima facie claim of selective enforcement by showing the law-

enforcement policy had a discriminatory effect and that it was motivated by a

discriminatory purpose. Ex parte Aparicio, 672 S.W.3d at 708. Under Ex parte

Aparicio, the State does not have an opportunity to rebut the defendant’s prima facie

case of sex discrimination by showing that the alleged discriminatory treatment was

not because of the defendant’s sex. Ex parte Aparicio held that, once an applicant

makes a prima facie showing of an equal-protection violation (step one), the burden

shifts to the State to justify the discriminatory treatment (step three). See id.. Then,

under Ex parte Aparicio’s progeny, the Fourth District Court of Appeals has

determined that none of the justifications so far offered by the State have been

narrowly tailored enough to survive strict scrutiny.

–15–
IV. The State Prevailed Under a Three-Step Analysis, but Failed under Ex
Parte Aparicio’s Two-Step Analysis

On appeal, Rivera Saavedra argues the habeas court erred when it denied his

application for a writ of habeas corpus because he properly raised his equal-

protection challenge in a pretrial application for a writ of habeas corpus, he

established a prima facie claim of selective enforcement, and the State failed to

justify its discriminatory OLS policy. I would analyze his second and third

arguments differently from the majority.

A. Step One—Rivera Saavedra Made a Prima Facie Case

The record shows that the habeas court expressly concluded that

Rivera Saavedra met his burden to establish a prima facie claim of selective

enforcement based on sex discrimination

B. Step Two—The Habeas Court Found that the State’s Evidence Rebutted
Rivera Saavedra’s Claim

Once the habeas court concluded that Rivera Saavedra had established a prima

facie case of selective enforcement on the basis of sex, the habeas court was required

to determine whether equality under the law was denied because of Rivera

Saavedra’s membership in a protected class. Bell, 95 S.W.3d at 257.

The habeas court expressly found that both sexes were arrested under OLS

from its inception, both men and women were released to federal authorities as

opposed to just men, and the decisions made at the time of arrest were not based

solely on sex. It also expressly concluded that the State rebutted Rivera Saavedra’s

–16–
prima facie claim of selective enforcement based on sex discrimination. It therefore

rejected his claim that equality under the law was denied because of his sex (step

two of Bell’s three-step process). Selective enforcement of criminal laws constitutes

a denial of equal protection only upon a showing of a deliberate and intentional plan

to discriminate. See Richards v. League of United Latin Am. Citizens (LULAC), 868

S.W.2d 306, 313 n.7 (Tex. 1993). The habeas court found that the State’s evidence

rebutted the claim of intentional discrimination and therefore held that there was no

equal-protection violation. In other words, the habeas court concluded that sex

discrimination was not the “controlling” reason for the government’s actions. See,

e.g., Benito Guzman, 85 S.W.3d at 254.

On appeal, Rivera Saavedra challenges the habeas court’s denial of his

application for a writ of habeas corpus on the basis that the habeas court erred when

it concluded the State justified its OLS policy. That addresses only step three of the

three-step process. He was required to challenge all possible grounds on which the

habeas court might have relied when denying his application and he failed to do so.

Nowhere in his brief on appeal does he argue the State failed to rebut his prima facie

claim of selective enforcement or that the habeas court erred when reaching that

conclusion. Further, as discussed elsewhere in this opinion, the record reflects that

the State offered evidence and the habeas court made findings about additional

reasons for the policy other than purposeful discrimination due to lack of detention

capacity—people that received different treatment than Rivers Saavedra were

–17–
treated differently because they were older, traveling with children, or suspected to

be sex-trafficking victims, not because they were women.

As a result, I would conclude that we are precluded from reversing the habeas

court’s order because Rivera Saavedra has not challenged all independent grounds

that fully support the habeas court’s order. See Trevino v. City of San Antonio, 685

S.W.3d 863, 867 (Tex. App.—San Antonio 2023, no pet.); see also Marsh v. State,

343 S.W.3d 475, 479 (Tex. App.—Texarkana 2011, pet. ref’d). In the absence of a

challenge to all asserted grounds, an appellate court must accept the validity of the

unchallenged independent grounds and affirm the adverse ruling. See Trevino, 685

S.W.3d at 867; see also Marsh, 343 S.W.3d at 479.

Further, affording almost total deference to the habeas court’s factual

findings, and viewing the evidence in the record in the light most favorable to the

habeas judge’s rulings, I would uphold the ruling because Rivera Saavedra has not

shown that the habeas court abused its discretion in concluding that the State

rebutted Rivera Saavedra’s claim that equality under the law was denied because of

his sex.

C. Step Three—Whether the Government’s Justification Was Narrowly
Tailored

The habeas court evaluated the weight and credibility of the evidence and

concluded that the State’s policy was not because of purposeful discrimination under

step two, so a court should not proceed to step three to evaluate whether a

discriminatory policy survives strict scrutiny. However, under Ex parte Aparicio,
–18–
the government does not have the step-two chance to rebut the charge of purposeful

discrimination. Once a defendant makes his prima facie case, the government must

skip straight to the third step of proving that a discriminatory policy was narrowly

tailored to serve a compelling governmental interest.

Rivera Saavedra argues the habeas court erred when it concluded the State

justified its discriminatory OLS policy because it incorrectly applied the rational-

basis standard instead of intermediate scrutiny or strict scrutiny. He also contends

that the State failed to establish that its discriminatory policy survives either

intermediate or strict scrutiny. Further, he claims that the habeas court’s conclusions

“hinged on its finding that the counties lacked housing for women” and the State

failed to establish that its multi-billion-dollar budget did not allow it to increase

detention capacity for women before his arrest.

Rivera Saavedra does not challenge the habeas court’s findings of fact and,

under the applicable standard of review, we must afford almost total deference to

those factual findings if they are supported by the record, especially when those

findings are based on credibility. See Diamond, 613 S.W.3d at 544. Accordingly, I

review whether the habeas court’s findings and the evidence support the habeas

court’s conclusion that the State justified its OLS policy.

–19–
I analyze the parties’ arguments under strict scrutiny rather than intermediate

scrutiny9 because that is the more difficult of the two standards to satisfy. In order

to justify its OLS policy under strict scrutiny, the State had to show that the policy

was narrowly tailored to serve a compelling governmental interest. See Bell, 95

S.W.3d at 257.

1. Compelling Government Interest

I begin with an analysis of the compelling governmental interest at issue—a

humanitarian purpose to avoid re-victimizing trafficked individuals or depriving

children of guardians. On appeal, Rivera Saavedra concedes that “the State’s

articulated interest is compelling.”10 Also, the habeas court made the following

express fact findings that show the State’s OLS policy served a compelling

governmental interest and that support the habeas court’s conclusion that the State’s

OLS policy was justified:

 OLS was established as a funding mechanism to support law
enforcement in relation to the surge of crime on the border including
human smuggling, trafficking, and trespass as it relates to an
unprecedented number of illegal crossings of immigrants.

9
A federal equal-protection claim on the basis of sex discrimination is subject to intermediate scrutiny.
Clark v. Jeter, 486 U.S. 456, 461 (1988); Ex parte Aparicio, 672 S.W.3d at 708. When intermediate
scrutiny applies, the State must demonstrate that the discriminatory classification is substantially related to
an important governmental objective. Clark, 486 U.S. at 461; cf. Ex parte Aparicio, 672 S.W.3d at 708.
10
Although the habeas court found that law enforcement’s actions further a “legitimate governmental
objective and interest,” that finding is immaterial because Rivera Saavedra has conceded on appeal that
“the State’s articulated interest is compelling,” which is the standard under strict scrutiny. See Bell, 95
S.W.3d at 257 (habeas court must determine whether law is narrowly tailored to serve a compelling
governmental interest).
–20–
 There was a danger to life and property, lack of housing availability
and a humanitarian purpose not to re-victimize trafficked
individuals or deprive children of guardians.

In addition, the Governor’s proclamation stated, in part:

 WHEREAS, on March 17, 2021, [Governor Abbott] expanded
[OLS] to have DPS interview unaccompanied alien children to
identify victims of human trafficking and gain actionable
intelligence that will aid in the arrest of traffickers; and

 WHEREAS, the Biden Administration’s immigration policies are
failing Texans, causing a humanitarian crisis in many Texas
communities along the border; and

 WHEREAS, the Biden Administration’s open-border policies
have . . . dramatically increased the risk of human trafficking . . . .

Further, in his affidavit, DPS South Texas Regional Director Escalon stated, in part:

 In July 2021, DPS personnel were directed not to arrest
unaccompanied children or family units; and

 In August 2021, DPS personnel were directed not to arrest females
for criminal trespass based on many factors including the inability
to distinguish between females who were trespassing from those
being smuggled or trafficked by their male companions.

The habeas court’s express findings show that the particular evidence

admitted in this case supported the habeas court’s assessment that the State was not

acting for a discriminatory purpose, but to protect children and trespassing females

who might also be trafficking victims. Accordingly, deferring to the habeas court’s

findings of fact and viewing the evidence in the light most favorable to the habeas

court’s ruling, I would conclude that the habeas court did not abuse its discretion in

concluding that the State’s OLS policy served a compelling governmental interest.

–21–
2. Narrowly Tailored

Next, I analyze whether the evidence and the habeas court’s findings of fact

show that the OLS policy advancing that compelling governmental interest was

narrowly tailored. First, I look to whether the OLS policy is one that advances the

State’s humanitarian purpose to avoid re-victimizing trafficked individuals or

depriving children of guardians—whether it is necessary. The habeas court made

the following express fact finding, which is summarized below, that shows the

State’s OLS policy was necessary:

 The charging decisions made by OLS law enforcement were done
not with purposeful discrimination but to be able to immediately
deal with the situation at hand during a state of emergency and
disaster.

Also, the Governor’s proclamation stated, in part, that:

 WHEREAS, the unabated influx of individuals resulting from
federal government policies threatens to negatively impact state-
licensed residential facilities, including those that serve Texas
children in foster care.

 I . . . hereby certify that the ongoing surge of individuals unlawfully
crossing the Texas–Mexico border poses an ongoing and imminent
threat of widespread and severe . . . human trafficking. . . .

Further, the affidavit of DPS South Texas Regional Director Escalon stated, in part,

that the OLS policy was necessary because there was an inability to distinguish

between females who were trespassing from those being smuggled or trafficked by

their male companions.

–22–
The habeas court made the following express fact findings, which are

summarized below, that show the State’s OLS policy was neither overly inclusive

nor underinclusive:

 Rivera Saavedra’s claims are based on the implementation of the
Texas criminal trespass statute as it relates to the border counties
and illegal immigration, not as it is implemented throughout Texas.

 When making that decision, consideration was given not only to sex
but also to who was traveling with whom, i.e., the family situation,
age, and children.

 The factors taken into consideration were not treated individually
but as a composite of the factors relating to the specific person.

 Included in the factors taken into consideration was the availability
of space permitted under jail standards and whether the offense was
a felony or a misdemeanor.

 Both sexes were arrested under OLS from its inception.

 Both men and women were released to federal authorities as
opposed to just women.

 The decisions made at the time of arrest were not based solely on
sex.

The Governor’s proclamation shows that the OLS policy was tailored by

geography and limited to thirty-four border counties—Brewster, Brooks, Cameron,

Crockett, Culberson, Dimmit, Duval, Edwards, El Paso, Goliad, Gonzales, Hidalgo,

Hudspeth, Jeff Davis, Jim Hogg, Kenedy, Kinney, La Salle, Lavaca, Maverick,

McMullen, Pecos, Presidio, Real, Reeves, Starr, Sutton, Terrell, Uvalde, Val Verde,

Webb, Willacy, Zapata, and Zavala.

–23–
Captain Betancourt’s testimony shows the policy was narrowed to not

detaining females committing misdemeanor criminal trespass and those traveling in

family units:

 He testified that if a misdemeanor crime is committed in his
presence, he arrests the person.

 He stated that he has never been asked by a prosecutor not to arrest
someone, either male or female.

 He stated that he does not agree that gender is used to determine
whether a person will be charged.

 He testified that, for females arrested for smuggling, the officer calls
the jail to see if there is space for a female and, if not, they will file
an at-large case against her but, for females detained for
misdemeanor trespass, they do not call the local holding facility to
check for capacity.

 He stated that, due to the large numbers of males and females being
arrested with no space to detain them, including females arrested for
criminal trespass, DPS began filing at-large cases.

 He explained that an at-large case refers to the generation of a case
report that includes the arrestee’s identifying information and a
probable cause affidavit which is submitted to the prosecutor’s
office.

Also, Captain Betancourt’s email to DPS officers answering questions about the

OLS policy provides examples of scenarios where females and children will not be

detained but released to the Border Patrol. Also, in his testimony, Captain

Betancourt explained that these examples were intended to clarify the “family

dilemma” because his email does not provide any examples of encountering a

woman by herself or with other females.

–24–
The State’s OLS policy sought to protect victims of human trafficking and

children. The habeas court’s express findings show that the specific evidence in this

case supported the habeas court’s assessment that the State was not acting for

improper discriminatory reasons, but to protect the female trespassers and children,

doing so to the best of the State’s ability with the resources available on that day.

In applying strict scrutiny, the Texas Court of Criminal Appeals has evaluated

whether the government’s action is narrowly tailored without analyzing whether it

is the least restrictive alternative. See, e.g., Martinez v. State, 323 S.W.3d 493, 505-

07 (Tex. Crim. App. 2010). This evidence is similar to the types of tailoring the

Texas Court of Criminal Appeals upheld in Martinez.

3. Least Restrictive Alternative

However, the Texas Supreme Court requires us to look at whether the policy

is the least restrictive alternative.11 See Abbott v. Anti-Defamation League Austin,

Sw., & Texoma Regions, 610 S.W.3d 911, 919 (Tex. 2020) (per curiam). Under a

strict-scrutiny review, the State had the burden to provide evidence showing that the

OLS policy could be replaced by no other policy that could advance the State’s

humanitarian interest as well. See In re McLean, 725 S.W.2d at 698. While the

record does contain evidence supporting the habeas court’s findings that there was

11
The Texas Supreme Court has explicitly interpreted the Texas Constitution to require that the policy
is the least restrictive alternative. The Texas Court of Criminal Appeals has not directly addressed this
issue. Given the lack of explicit precedent from the Texas Court of Criminal Appeals, I follow the clear
guidance from the Texas Supreme Court.
–25–
no discriminatory purpose and that the government’s objectives were compelling, it

does not contain sufficient evidence to survive a strict-scrutiny review under the

supreme court’s requirement that the State prove that the policy was the least

restrictive alternative and that it could be replaced by no other policy.

Accordingly, Ex parte Aparicio’s two-step test requires us to reverse the

habeas court in this case, based on the specific record before us, and I therefore

concur with that portion of the majority’s opinion as I am bound to do by Rule 41.3.

V. Conclusion

The habeas court concluded that Rivera Saavedra’s claim of purposeful

discrimination was rebutted. We are required to view the evidence in the record in

the light most favorable to the habeas judge’s ruling and must uphold that ruling

absent an abuse of discretion. I would conclude that we are precluded from reversing

the habeas court’s order because evidence in the record supports the habeas court’s

ruling and because Rivera Saavedra has not challenged all independent grounds that

fully support the habeas court’s order.

However, Ex parte Aparicio requires us to evaluate this case under step

three—whether the government justified a discriminatory policy. The record

evidence supports the habeas court’s findings, and Rivera Saavedra concedes, that

the State’s policy served a compelling governmental interest. However, the State

did not provide specific evidence in this case proving that its policy was narrowly

–26–
tailored—that it was the least restrictive means of achieving its legitimate regulatory

goals as required by the Texas Supreme Court.

Under the three-step test set forth in Bell, I would affirm the habeas court’s

order denying Rivera Saavedra’s application for a writ of habeas corpus. However,

because I am bound to follow Ex parte Aparicio and ensure that this transfer case

will not produce a different outcome, I am required to concur in the judgment.

/Emily A. Miskel/
EMILY A. MISKEL
Do Not Publish JUSTICE
Tex. R. App. P. 47
240216DF.U05

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