EX PARTE CAMPOS v. << (2025)

Petition for Discretionary Review Refused.

CONCURRING OPINION

Part A of Presiding Judge Keller's dissenting opinion in Ex parte Aparicio draws a distinction between “selective prosecution” claims and “selective enforcement” claims and concludes that “selective enforcement” claims are not cognizable on pretrial habeas.¹ I find her arguments to be substantial, at least insofar as they concern the initial arrest of a defendant by law enforcement, and would be open to considering those arguments in an appropriate case. I view this as an open question because the Court in Aparicio suggested that it was not appropriate to address the possible distinction between “selective enforcement” and “selective prosecution” claims because the parties had not litigated the issue and that it was treating both types of claims as the same “for the purposes of this opinion.”² However, to the extent the Court's opinion in Aparicio could be construed as actively rejecting Presiding Judge Keller's position, I would nevertheless be open to reconsidering that question because of our obligation to “take care to ensure that a pretrial writ has not been misused.”³

Like the claim in Aparicio, Appellant's claim is based solely on the actions of law enforcement officers—making it a “selective enforcement” claim. But the present case is not an appropriate one to grant review. Although finding Appellant's claim to be non-cognizable would technically change the disposition of this case by requiring a dismissal of the appeal,⁴ the practical effect on Appellant would be the same—not granting relief on his pretrial habeas claim. And there are not weighty jurisprudential reasons for reaching the cognizability issue despite the lack of a practical effect on the case's outcome.⁵

Consequently, I concur in the Court's decision to refuse review.

FOOTNOTES

1.   707 S.W.3d 189, 211-14 (Tex. Crim. App. 2024) (Keller, P.J., dissenting) (part A).

2.   Id. at 199-200 (Court's op.).

3.   See Ex parte Hammons, 631 S.W.3d 715, 716 (Tex. Crim. App. 2021) (citing Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010)).

4.   See Ex parte Doster, 303 S.W.3d 720, 723, 727 (Tex. Crim. App. 2010) (Although the court of appeals affirmed the denial of relief, we vacated its decision and ordered the appeal dismissed because the claim was not cognizable on pretrial habeas.).

5.   Cf. Ellis, 309 S.W.3d at 76, 81-82 (concluding that court of appeals circumvented pretrial habeas cognizability to address a novel statutory-construction argument); Rushing v. State, 85 S.W.3d 283, 283-84, 285-87 (Tex. Crim. App. 2002) (granting review and undoing holding that statute was unconstitutional even though doing so had no effect on the outcome of the case).