Ex Parte: Efren Santiago-Salinas v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§ No. 08-23-00286-CR
EX PARTE:
§ Appeal from the
EFREN SANTIAGO-SALINAS,
§ the County Court
Appellant.
§ of Kinney County, Texas

§ (TC# 11809CR)

MEMORANDUM OPINION ON REHEARING 1 0F

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

(DPS) in collaboration with the Texas National Guard to initiate Operation Lone Star (OLS) to

address the influx of illegal border crossings from Mexico to Texas. Ex parte Aparicio, No. PD-

0461-23, 2024 WL 4446878, at *1 (Tex. Crim. App. Oct. 9, 2024) (cert. filed). Among other things,

“OLS authorized the detention and arrest of individuals crossing the border illegally for state level

offenses committed on or near the border.” Id.

Pursuant to the State’s OLS policy, Appellant Efren Santiago-Salinas (Santiago-Salinas), a

noncitizen, was arrested and charged with the State misdemeanor offense of criminal trespass in

Kinney County near the U.S.-Mexico border. Contending that under OLS policy, the State only arrested

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We grant the State’s motion for rehearing, withdraw our opinion and judgment of August 16, 2024, and substitute this
opinion on rehearing and the corresponding judgment in their place.
men who were caught trespassing at the border, Santiago-Salinas filed an application for a pretrial writ

of habeas corpus in district court in Kinney County. Santiago-Salinas argued he was the subject of

selective prosecution in violation of state and federal constitutional equal protection principles.

Without holding a hearing, the trial court denied his application, and Santiago-Salinas filed an

appeal with the Fourth Court of Appeals. The appeal was transferred to this Court pursuant to a

Texas Supreme Court docket equalization order.

I. OUR ORIGINAL OPINION

In accordance with Texas Rule of Appellate Procedure 41.3, we originally resolved

Santiago-Salinas’s appeal by applying the Fourth Court of Appeals’ precedent as set forth in Ex

Parte Aparicio and its progeny. See Tex. R. App. P. 41.3; 2 Ex parte Santiago-Salinas, No. 08-23-
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00286-CR, 2024 WL 3848551, at *1 (Tex. App.—El Paso Aug. 16, 2024, no pet.) (mem. op., not

designated for publication) (citing Ex parte Aparicio, 672 S.W.3d 696, 701 (Tex. App.—

San Antonio 2023) rev'd, No. PD-0461-23, 2024 WL 4446878 (Tex. Crim. App. Oct. 9, 2024)). In

Aparicio, the Fourth Court of Appeals faced a similar selective prosecution argument in an

application for a pretrial writ of habeas corpus brought by Luis Aparicio, a noncitizen who was

arrested for trespassing on private property in Maverick County pursuant to the State’s OLS policy.

Ex parte Aparicio, 672 S.W.3d at 701. The trial court held a full evidentiary hearing on Aparicio’s

application and ultimately denied the application. Id. at 701. The Fourth Court of Appeals reversed,

concluding that Aparicio was entitled to habeas relief. Id.

In reversing, the court first held that Aparicio’s claim of selective prosecution was

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Rule 41.3 provides: “In cases transferred by the Supreme Court from one court of appeals to another, the court of appeals
to which the case is transferred must decide the case in accordance with the precedent of the transferor court under
principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of
the transferor court. The court's opinion may state whether the outcome would have been different had the transferee court
not been required to decide the case in accordance with the transferor court's precedent.” Tex. R. App. P. 41.3.

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cognizable in a pretrial habeas setting. Id. at 713. It then found that Aparicio presented sufficient

evidence to establish that the State had only arrested men at the border for criminal trespass under

OLS. Id. In turn, it found that Aparicio met his burden of establishing a prima facie case that the

State’s OLS policy had a discriminatory effect, and further, that it was motivated by a discriminatory

purpose. Id. at 713, 715–16. In a subsequent case, the Fourth Court of Appeals held that the State

was unable to justify its discriminatory OLS policy, despite the State’s argument that the policy was

necessary in light of the governor’s proclamation “declaring an emergency regarding border

security” and “testimony that the counties implementing OLS do not have sufficient facilities to

hold women detainees.” State v. Gomez, 692 S.W.3d 710, 719 (Tex. App.—San Antonio 2023)

judgment vacated sub nom. Ex parte Rodriguez-Rodas, No. PD-0073-24, 2024 WL 5074593 (Tex.

Crim. App. Dec. 11, 2024).

Because Santiago-Salinas’s claim of selective prosecution was based on the same OLS

policy that the Fourth Court of Appeals found had both a discriminatory effect and purpose—and

was not constitutionally justifiable—we concluded that Santiago-Salinas was entitled to habeas

relief based on his claim of selective prosecution. Ex parte Santiago-Salinas, 2024 WL 3848551, at

*6–7. We therefore reversed the trial court’s order denying his habeas application. Id. at *7.

II. LEGAL DEVELOPMENTS FOLLOWING OUR OPINION

In October 2024, the Court of Criminal Appeals reversed the Fourth Court of Appeals’

holding in Aparicio. See Ex parte Aparicio, 2024 WL 4446878, at *14. In its opinion, the court first

agreed with the Fourth Court of Appeals’ conclusion that Aparicio’s claim of selective prosecution

was cognizable in a pretrial habeas setting. Id. at *8. (finding “Appellant’s claim, at least under these

circumstances, to be cognizable for pretrial habeas purposes”). But it concluded that Aparicio had

not met his burden of establishing that he was subjected to selective prosecution. Id. at *12–14.

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In reaching this conclusion, the court observed that to succeed on a claim of selective

prosecution or selective enforcement, a claimant must prove with “exceptionally clear evidence”

both that the State’s prosecutorial policy had a discriminatory effect and was motivated by a

discriminatory purpose. Id. at 9. The court recognized that Aparicio arguably met the first prong of

this test by presenting evidence that, in a five-county region, 3 the State had only arrested males (and
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non-elderly adult males in particular) for criminal trespass under its OLS policy during the

applicable time period in which Aparicio was arrested. Id. at *2, *12. And although the court noted

that the State arrested women for other offenses under its OLS policy, such as human smuggling, it

assumed “for the sake of argument” that Aparicio had nevertheless satisfied his burden of showing

that the OLS policy had a “discriminatory effect.” Id. at *12.

However, the court concluded that Aparicio failed to present clear evidence establishing that

the OLS policy of arresting only men for criminal trespass at the border was motivated by a

discriminatory purpose. Id. at *12–14. To the contrary, the court held that Aparicio’s own evidence

supported a finding that the State’s motivation was one of practical necessity, stemming from the

fact that there was a massive influx of immigrants crossing over the border in the five-county region,

the majority of which were male. Id. at *13. Noting the limited jail facilities in that region, the court

determined that the OLS policy of arresting only men for trespass (and transporting them to a large

male-only processing center constructed for the purpose of housing such OLS arrestees) was “more

likely” motivated by the “limited resources” the State had to address the “ongoing emergency” at

the border “rather than gender discrimination.” Id. at *13.

Accordingly, the court concluded that Aparicio failed to meet his burden of “demonstrating

a prima facie case that he [was] arrested and prosecuted because of his gender,” and as such, he did

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The five counties included Webb, Jim Hogg, Maverick, Kinney, and Valverde.

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not meet the “‘demanding’ standard required for judicial interference in the State’s discretion in

administering criminal justice policy and priorities (emphasis in original).” Id. at *14. The court

therefore reversed the Fourth Court of Appeals and held that the trial court properly denied

Aparicio’s application for a writ of habeas corpus. Id.

III. OUR REVISED RULING

Applying the Court of Criminal Appeals’ opinion in Aparicio, we reach a similar conclusion

with respect to Santiago-Salinas’s habeas application. Santiago-Salinas was arrested for criminal

trespass under the same OLS policy or “mindset” that was in effect in the same five-county region

in which Aparicio was arrested and detained. And Santiago-Salinas relied on virtually the same

evidence that Aparicio did in attempting to establish that the OLS policy of only arresting males for

criminal trespass in that region was motivated by gender discrimination.

We therefore conclude that, like Aparicio, Santiago-Salinas has failed to establish a prima

facie case that he was arrested because of his gender. Id. at *14. Accordingly, we conclude that the

trial court properly denied his application for a pretrial writ of habeas corpus.

IV. CONCLUSION

The trial court’s judgment is affirmed.

LISA J. SOTO, Justice

December 30, 2024

Before Alley, CJ, Palafox and Soto, JJ.

(Do Not Publish)

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