What to Do When the Trial Court Refuses to Hear Your Writ (OLS Edition)

The Fourth Court of Appeals heard a case out of the infamous Kinney County (home to the large majority of “Operation Lone Star” cases), presided over at the time by the Honorable Susan Reed, a visiting judge. In that case, Paulin Gonzalez Delgadillo, defendant, filed a pretrial writ of habeas corpus alleging selective prosecution. Gonzalez Delgadillo claimed that “women were neither charged with nor prosecuted for criminal trespass, though men, including Gonzales Delgadillo, were charged and prosecuted, and that the State chose who to charge with and prosecute for criminal trespass based on their sex.” Ex parte Gonzalez Delgadillo, No. 04-23-00690-CR (Tex. App.—San Antonio, July 24, 2024) (mem. op., not designated for publication).

Judge Reed refused to hold a hearing on the writ of habeas corpus, and Gonzalez Delgadillo appealed from the denial of his pretrial application for writ of habeas corpus. His lawyers also requested the Fourth Court treat his appeal as a petition for writ of mandamus. While the Fourth Court dismissed the appeal for want of jurisdiction, the Court conditionally granted his mandamus petition. What does that mean?

First, when Judge Reed issued an order stating “the Application is denied without hearing and the writ is not issues,” it meant the Fourth Court did not have jurisdiction to rule. “There is no right to an appeal when a trial court refuses to issue a habeas writ or dismisses or denies a habeas application without ruling on the merits of the applicant’s claims.” Id. at *2.

But, luckily, Gonzalez Delgadillo’s lawyers also asked the court to consider the appeal as a mandamus petition. Gonzalez Delgadillo is entitled to a mandamus (or an order from the Fourth Court telling the trial court to do something) if he can show (1) he has no adequate remedy at law to redress his alleged harm, and (2) what he seeks is a ministerial duty on the part of the trial court.

“A trial court has a duty to issue a writ and rule on the merits of a pretrial habeas application that has been properly filed with the court, unless it is ‘manifest from the application itself . . . that the applicant is not entitled to any relief.’” Id. at *4.

So, does Gonzalez Delgadillo have a claim? Yes, he alleged enough facts in his writ to make a colorable claim for selective prosecution. And the Fourth Court held in 2023 that an allegation of selective prosecution could be sought through a pretrial writ of habeas corpus in Ex parte Aparicio, 672 S.W.3d 696 (Tex. App.—San Antonio, 2023, pet. granted).

The Fourth Court order the trial court in Kinney County to hold a hearing on the writ and rule on the merits of the claim.

Other OLS defendants have been successful with litigating claims of selective prosecution and selective enforcement (when it’s the law enforcement making the discriminatory arrests versus prosecutors making charging decisions). On the same day as the ruling in Ex parte Gonzalez Delgadillo, the Fourth Court affirmed dismissals in six other individuals’ criminal trespass cases. (The week prior, the Fourth Court affirmed another 11 OLS dismissals on the same ground.) Those dismissals were originally granted by the trial court after holding a hearing on 21 defendants’ claims of selective enforcement. The trial court believed law enforcement was arresting men, but not similarly situated women, and that the state did not have a good enough reason for violating the defendants’ right to Equal Protection and the Texas Equal Rights Amendment. See State v. Avila, No. 04-22-00892-CR (Tex. App.—San Antonio, July 24, 2024) (mem. op., not designated for publication). The Fourth Court in these cases pointed to State v. Gomez, No. 04-22-00872-CR (Tex. App.—San Antonio Nov. 15, 2023, pet. filed), where the Fourth Court detailed all the evidence put forward at this same hearing.