The Texas Department of Public Safety detained and arrested Appellant, Luis Alfredo Aparicio, for criminal trespassing as part of Operation Lone Star in Maverick County. Unlike Appellant, the two women in his group were not arrested but instead transferred to the custody of the U.S. Border Patrol. The question before this Court is whether Appellant’s claim of selective arrest and prosecution based on his sex is cognizable under pretrial habeas proceedings. And if so, we must answer whether Appellant met the “demanding” burden in showing a prima facie case of selective enforcement or prosecution. We find that although Appellant’s claim is cognizable on pretrial habeas, he failed to meet his burden in showing a prima facie case. For the reasons below, we reverse the court of appeals below and affirm the trial court’s denial of relief. Background On March 6, 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 unprecedented influx of illegal border crossings from Mexico to Texas. According to the Governor’s office, the purpose of OLS was to “combat the smuggling of people and drugs into Texas.” OLS authorized the detention and arrest of individuals crossing the border illegally for state level offenses committed on or near the border. On March 17, 2021, only eleven days into the operation, OLS reported “apprehending” over 35,000 illegal migrants and seizing over 10,000 pounds of drugs crossing the border. By August 30, 2021, OLS expanded to cover 43 counties from the initial 28 counties on or near the border. Disaster declarations for these counties were issued by both the Governor and local county authorities as a means of increasing State resources. By June 24, 2022, Governor Abbott reported that OLS had succeeded thus far in turning back more than 22,000 unauthorized migrants from crossing the border, and made approximately 265,500 “apprehensions,” approximately 16,400 criminal arrests, and roughly 13,800 felony charges. Only weeks later, Governor Abbott reported that OLS had “apprehended” 5,000 illegal migrants during the July 4, 2022 weekend alone. On May 3, 2022, Appellant, Luis Alfredo Aparicio, was “apprehended” in Maverick County by DPS Troopers working as part of OLS. Appellant was spotted by OLS drone operators walking in the dark at 3:18 a.m. in the morning on private land surrounded by a high fence. He was in the company of two other adult males, a juvenile male, and two women. All six were detained but only the three adult males, including Appellant, were arrested for criminal trespass. Because the jails were unable to accept females or juveniles, the juvenile male and two women were transferred to the custody of U.S. Border Patrol. On July 28, 2022, Appellant filed an application for pretrial writ of habeas corpus with the trial court. Appellant alleged that his arrest (and forthcoming prosecution) for criminal trespass was unconstitutionally selective under both the federal and state constitutions, and sought dismissal. Specifically, Appellant alleged that OLS engaged in prohibited sex discrimination because Appellant, along with the other two adult males in his group, were arrested and charged, while the two women in his group were transferred to the U.S. Border Patrol—who had the authority to refer the matter to the U.S. Attorney’s Office for federal prosecution for crossing the border illegally. On August, 8, 2022, the trial court held a contested pretrial hearing to hear testimony and the arguments of the parties. During the hearing, the court heard testimony from numerous witnesses including a client advocate from the Lubbock Private Defender’s Office, Appellant, DPS Captain Betancourt, the prosecutorial liaison for Maverick County, and four DPS Troopers working with OLS in a five-county area of the total 43 counties involved in OLS. Witnesses testified towards the following over the course of the hearing: – Governor Abbott had declared a state of disaster in the counties of Webb, Jim Hogg, Maverick, Kinney, and Valverde. - OLS predominantly arrested suspects under two criminal offenses. The primary felony arrest was for “Smuggling of Persons,” and the primary misdemeanor arrest was for “Criminal Trespass.” - Suspects arrested in connection with OLS (in the five-county area) were transported to a processing center in Valverde or Jim Hogg county (each servicing their respective areas). The processing centers were essentially a huge air-conditioned tent with holding cells that also housed areas for the booking process, medical process, and mental health screening. - The Lubbock Private Defender’s Office was awarded a grant from the Texas Indigent Defense Commission in order to appoint counsel for any defendant arrested under OLS who was found indigent in the above five counties. - Anyone arrested under OLS would be prosecuted under the local district attorney. In Maverick County, OLS arrestees would be prosecuted under the local district attorney’s office which had not set any prohibitions against arresting or prosecuting females. - On August 5, 2022, the Lubbock Private Defender’s Office ran a report on their case management system in the five-county area. While it found women being arrested for felonies in connection with OLS, it found zero women arrested for criminal trespass out of 4,076 cases. - The processing centers were not able to house female detainees because they were subject to the policies and procedures required for county jails and could not meet the requirements for housing them. Some of these requirements covered rules regarding the actual structure itself, the security for monitoring prisoners at the cells, monitoring meals, and segregation of the sexes and for juveniles. - Sometime after processing, detainees would ultimately be moved to two former prisons (Brisco or Segovia units). These former prisons (originally intended to house males only) had undergone various measures of transformation (including the installation of air-conditioning) to convert them into acceptable pretrial detention facilities. - On August, 12, 2021, DPS Captain Betancourt, emailed members of his team involved in OLS with evolving guidelines based on jail capacities and capabilities. The email was titled “Guidance on arrests for Criminal Trespass.” There he directed the following: We will continue to arrest those immigrants who are trespassing on private property (Only in Val Verde and Kinney County) where the landowner has agreed to file a complaint or agreed to have us sign them on their behalf. The criteria has been expanded to include the majority of single adult males” if they were trespassing on private property. While it would be difficult to cover every single scenario, below are some examples: Father, Mother, and Child under 18 — Family Unit. Release to BP [Border Patrol]. Father, Mother, and Child over 18 and are trespassing-Male father will be arrested. Mom and adult child will be released to BP. Uncle and adult nephew and are criminal trespassing-Arrest both. Uncle and child nephew-Family Unit, refer to BP. The basic common denominators are: If there is a child who is part of a family. We will refer to BP If the family consists of male adults (18 and over) we will arrest, if they are trespassing. - In another email, Betancourt also explicitly excluded males that were “60-plus or injured.” - Captain Betancourt did not make any note regarding single adult females found trespassing. However, among the examples he provided, anyone excluded was to be referred to border patrol. - For the felony offense of “human smuggling,” both men and women were targeted for arrest. - Four DPS troopers involved in OLS but operating in different areas of the five-county region testified to various apprehensions of mixed groups (including Appellant’s group). While they all testified that the processing center and the jails were not taking females for criminal trespass, some of them called ahead to confirm prior to referring females to border patrol while others did not. Moreover, at least one county in the five-county area did not have a local jail. - All of the troopers testified that they did not arrest any of the females for criminal trespass because they understood that the jails and processing center would not accept them. - One DPS trooper testified that the groups illegally crossing the border were predominantly men. At the conclusion of testimony, the trial court made the following observation regarding Appellant’s arguments that women were selectively favored over men: The Court: Tell me this, you tried to give [sic] a couple of these young troopers to say something that wasn’t true. When they turn these people over to immigration, they are in custody. They are not free to go. They are then deported or God knows what else they do. But I mean, face it, you’ve got, last I heard, over three million people in the last year and half have been coming across our borders illegally and being sent off all over the country. They think there is about 900,000 that got away that weren’t, you know, turning themselves in. And you are concerned about — how many women were not prosecuted? Following closing arguments, the trial court further observed that while adult women appeared to be benefiting from the OLS arrest guidance by not being formally arrested and charged with trespass, so were certain classes of adult men. Based on this finding, the trial court concluded that there was no sex discrimination and denied both Appellant’s pretrial writ and motion to dismiss. On Appeal at the Intermediate Appellate Court sitting en banc. On appeal, the State first asserted that Appellant’s claim of selective enforcement and prosecution was not cognizable on pretrial habeas. Further, the State asserted that even if it were, Appellant failed to meet his burden in showing his arrest (and other arrested adult males) was motivated by impermissible gender discrimination. The State instead argued that “this case is not about gender discrimination, but common sense logistics during a declared emergency.” In response, Appellant maintained that his claim of sex discrimination was cognizable on appeal and that he met his burden in proving a discriminatory intent. In other words, Appellant was targeted and arrested because of, at least in part, his gender while women were not. Accordingly, Appellant argued, that OLS’s policy should be subjected to strict scrutiny and Appellant’s prosecution should be dismissed. The Fourth Court of Appeals sitting en banc first held that although there was no precedent directly on point, Appellant’s claim was cognizable on pretrial habeas writ. According to the court of appeals, the record below was fully developed and that Appellant’s right to equal protection would be undermined if not vindicated before trial, and addressing the matter pretrial would further judicial efficiency concerns by eliminating the entry of void judgments. On the merits of Appellant’s claim of selective prosecution, the appellate court found that Appellant had met his burden in demonstrating a prima facie case that “his gender was a motivating factor in his arrest.” Reversing the trial court’s ruling, the Fourth Court then remanded the case to allow the State the opportunity to rebut the presumptive finding of sex discrimination under the strict scrutiny standard required under Texas law. On discretionary review, the State only challenges the Fourth Court’s holding that Appellant’s claim is cognizable. Since this ruling, however, numerous cases have been appealed by similarly situated defendants across the border region resulting in a backlog of cases. To enable a complete appellate review and alleviate this backlog, this Court on its own motion granted review on the merits if the Court found the challenge cognizable. After receiving supplemental briefing from the parties, we now review Appellant’s case. The Nature of Appellant’s Claim We note that Appellant is contending that “the State’s policy of arresting and prosecuting men but not women for trespass” violates Equal Protection principles. Appellant, along with the State, the trial court, the Fourth Court of Appeals, and even this Court in a prior order have repeatedly referred to the claim as a claim of selective prosecution. The dissenting opinions now seek to relabel Appellant’s claim as solely one of selective law enforcement with no prosecution component—though no party has made any claim to that effect. Additionally, the dissents seek to distinguish between the selective enforcement and the selective prosecution and treat them differently based on the assertion that enforcement claims do not require dismissal. In support, one of the dissenting opinions selectively quotes from a federal district court case out of the District of Rhode Island. However, the text immediately after that quote contradicts their position and states the following: That said, the strong weight of authority suggests that a successful selective enforcement also requires dismissal. See [United States v. Mumphrey, 193 F. Supp. 3d 1040,] 1055-59 (surveying cases, following the Seventh and Tenth Circuits in holding that a selective enforcement claim requires dismissal); see also Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (requiring discharge of imprisoned petitioners where “public authorities charged with [ordinance] administration,” who were not prosecutors, applied the law “with an evil eye and an unequal hand”). In general, this Court agrees that: It is difficult to discern why selective prosecution warrants dismissal, but selective enforcement (upon which prosecution is necessarily predicated) would not. Racially selective action by law enforcement inflicts harm whether it is perpetrated by law enforcement in the streets or by a prosecutor in an office— both inflict substantial injury on the victim and society: In addition to violating the victim’s rights to equality and liberty, such discriminatory conduct impugns the integrity of the criminal justice system and compromises public confidence therein. Moreover, relabeling these claims as only “selective enforcement” would be disingenuous to do so given the history of this case. Not only has the claim been referred to as “selective prosecution” during the entire pendency of the case stretching from the trial court to this Court, the prosecutor has also taken an active role in defending the matter all the way to this Court as well. And because prosecutors also bear discretion in deciding which cases to prosecute, we cannot ignore their knowing adoption of all that happened before for the purposes of this claim. When asked by the trial judge on whether the prosecution would exert any prosecutorial limitations on DPS, the Maverick County Attorney himself responded: “If it comes into my office, I will prosecute them.” Nevertheless, both selective prosecution and selective enforcement claims use the same Equal Protections standards derived from the same line of Supreme Court precedents. Furthermore, both types of claims, often used interchangeably in federal courts, invoke the same analysis since they both impose the same sets of presumptions and burdens on the litigants. And so long as they satisfy the same requirements for cognizability, we risk being legally arbitrary and unjustifiably selective ourselves in finding only one cognizable but not the other. Therefore, for the purposes of this opinion, we shall treat both types of claims involving the “collision between equal protection principles and the criminal justice system” as the same. With this in mind, we now turn to the question of whether these claims are cognizable. Cognizability “Pretrial habeas, followed by interlocutory appeal, is an ‘extraordinary remedy’” available “only in very limited circumstances.” In order to prevent unnecessary delay and confusion at the pretrial stage, we have consistently held that pretrial habeas “should be reserved for situations in which the protection of the appellant’s substantive rights or the conservation of judicial resources would be better served by interlocutory review.” To prevent misuse, we have held pretrial habeas to be unavailable when resolution, “even if resolved in favor of the appellant, would not result in immediate release.” Such claims would not be cognizable on interlocutory appeal because, if it were meritorious, its success “would not bar prosecution or conviction.” Similarly, and in order to promote informed judicial rulings before trial, we have observed that “pretrial habeas is unavailable when the resolution of a claim may be aided by the development of a record at trial.” Thus, while facial challenges to the constitutionality of a statute under which an appellant is charged are cognizable, “as- applied” challenges to that statute generally are not. Nevertheless, we have recognized certain circumstances to be cognizable (e.g., double jeopardy or bail) “where the rights underlying those claims would be effectively undermined if not vindicated prior to trial.” These circumstances may include matters collateral to and distinct from the matters relevant to the guilt or innocence as determined through the course of trial. With these principles in mind, we turn to the cognizability of Appellant’s claim of selective arrest and prosecution utilizing pretrial habeas as its vehicle. In short, we agree with the Fourth Court of Appeals and find that Appellant’s claim is cognizable under the unique facts of his case. We agree that failing to adjudicate the issue now would effectively undermine Appellant’s right not to be arrested and prosecuted in an unconstitutional fashion. If successful on the merits, his case would be dismissed and barred from at 79). prosecution or conviction. As the court of appeals also noted, the record is already fully developed via a pretrial hearing. The collateral nature of Appellant’s claim also weighs in favor of cognizability. The facts necessary to resolve Appellant’s claim are largely independent of the facts concerning the question of his guilt or innocence—especially since selective prosecution or selective enforcement are not defenses on the merits to the criminal charge. Moreover, these facts would not naturally arise during the course of a trial giving strength to the conclusion that the rights Appellant seeks to vindicate “would be effectively undermined if not vindicated prior to trial.” Thus, a trial court in this situation can conduct a fact-finding proceeding (and develop a record) prior to trial without being inefficiently redundant to the trial itself. Declaring either type of claim to be non-cognizable would jeopardize future claims alleging unconstitutional discriminatory practices by the State. Such a holding would willfully blindfold the judiciary from recognizing potentially grave and even wide-spread injustice. We stress again that this is especially true where the facts necessary to address these claims do not arise naturally through the course of trial. In those scenarios where some part of the State is actually unconstitutionally discriminatory in their conduct, justice would arrive far too late (if at all) to properly vindicate constitutional rights. Sunlight, especially for those scenarios, is the best disinfectant. Given that all the above considerations weigh in favor of cognizability, we hold that Appellant’s claim, at least under these circumstances, to be cognizable for pretrial habeas purposes. Selective Prosecution and Selective Enforcement The Governor of the State of Texas is “the Chief Executive Officer of the State.” As part of the executive branch under the Governor’s direction, the Texas Department of Public Safety is tasked with “enforce[ing] the laws protecting the public safety and provid[ing] for the prevention and detection of crime.” A claim of selective prosecution or enforcement asks a court to “exercise its judicial power” by dismissing criminal charges prior to the onset of trial. The Supreme Court has recognized, prosecutorial discretion is “particularly ill-suited” for judicial review: Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute. Moreover, the potential remedy to a successful selective prosecution or enforcement claim, a dismissal of the criminal charge, is a drastic one. This is because “a selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” Thus, Supreme Court cases on selective prosecution have collectively “taken great pains to explain that the standard is a demanding one.” Accordingly, “‘[t]he presumption of regularity supports’ [the Government's] prosecutorial decisions and, ‘in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’” Nevertheless, prosecutorial discretion and the discretion to enforce the law is not “unfettered” because “[s]electivity in the enforcement of criminal laws . . . is still subject to constitutional constraints.” As the Supreme Court has stated, the decision whether to prosecute may not be “deliberately based on an unjustifiable standard such as race, religion, or other arbitrary classification.” In order to succeed in a claim of selective prosecution or selective enforcement, the claimant must prove with “exceptionally clear evidence” that: 1. The prosecutorial policy had a discriminatory effect; and 2. it was motivated by a discriminatory purpose. The appellant bears the burden initially to “dispel the presumption that the [Government] has not violated equal protection” with “clear evidence to the contrary.” Once a prima facie case is established, the burden shifts to the State to justify the discriminatory policy. The First Prong: The Prosecutorial Policy Had a Discriminatory Effect Under the “discriminatory effect” prong, the claimant must demonstrate “that similarly situated individuals of a different [arbitrary classification] were not prosecuted.” Specific to claims of gender discrimination, the Supreme Court has “recognized that in certain narrow circumstances men and women are not similarly situated; in these circumstances, a gender classification based on clear differences between the sexes is not invidious, and a legislative classification realistically based upon those differences is not unconstitutional.” The Second Prong: The Prosecutorial Policy Was Motivated by a Discriminatory Purpose Under the second prong, we can only presume that the word “discriminatory” references the characteristic of treating a distinct group or group member in an unfair or unjust way based on a prejudiced viewpoint, as opposed to merely differentiating or discerning between choices as an act of good judgment. Otherwise, penalizing men for knowingly trespassing in the women’s bathroom would be unconstitutional. So would having gender-specific prisons and state laws concerning statutory rape. One class is being singled out and treated differently than another class. Under this definition, the Supreme Court’s standard would not make sense. Our definition, on the other hand, is more consistent with selective prosecution and enforcement case law which uses synonyms and synonymous phrases such as “invidious,” “with an evil eye and an unequal hand,” “no reason for it exists except hostility to the [class],” and “with a mind so unequal and oppressive.” Black’s Law Dictionary confirms our understanding of the word because it defines “invidious discrimination” as: “Discrimination that is offensive or objectionable, esp. because it involves prejudice or stereotyping.” Accordingly, under the second prong, the claimant must show “an intentional or purposeful discrimination in the enforcement of the statute against him.” Moreover, “[a] discriminating purpose will not be presumed; a showing of clear intentional discrimination is required.” “‘Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences.” As the Supreme Court stated in a selective prosecution case based solely and exclusively in the racial context: There should be certainty to every intent. Plaintiff in error seeks to set aside a criminal law of the state, not on the ground that it is unconstitutional on its face, not that it is discriminatory in tendency and ultimate actual operation as the ordinance which was passed on in the Yick Wo Case, but that it was made so by the matter of its administration. This is a matter of proof; and no fact should be omitted to make it out completely, when the power of [the court] is invoked to interfere with the course of criminal justice of a state. Furthermore, “[a] defendant may demonstrate that the administration of a criminal law is ‘directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive’ that the system of prosecution amounts to ‘a practical denial’ of equal protection of the law.” To be clear, the guiding principles applied in these types of claims come from the Equal Protection Clause and not the Fourth Amendment. As the Supreme Court has explicitly established: “[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.” And while the Equal Protection Clause should guarantee equal protection, it does not provide for the right to commit criminal offenses in violation of facially neutral laws of the States. Thus, the Supreme Court has set a rigorous “demanding” burden be met before a defendant is entitled to any remedy. And because the burden is so “demanding,” it is not surprising that successful claims of selective prosecution or enforcement claims are extremely rare in contrast to suppression cases under the Fourth Amendment. Discussion We agree that the evidence adduced at trial demonstrated some level of a “discriminatory effect” in that women were not prosecuted (at least under the State offense of criminal trespass). However, we cannot ignore the fact that these women were transferred to the custody of the U.S. Border Patrol—a federal law enforcement agency with the authority to arrest migrants illegally crossing the border. Those detainees could have been prosecuted under the discretion of the U.S. Attorney’s Office. Though it is questionable whether Captain Betancourt’s “guidance” email is sufficient to constitute an official policy of the Governor, DPS, OLS, Maverick County, or even the larger entity of the State, it is undisputed that zero women have been charged—at least within the five- county area under DPS—with the misdemeanor of criminal trespass. We note, however, that although women were not charged with criminal trespass, some were arrested and charged with the far more serious felony of human smuggling. We also observe that though zero women were arrested and charged with criminal trespass by DPS in the five-county area, it was not shown whether women were charged with criminal trespass by other law enforcement agencies acting as arms of the State operating in the same area. It was also not shown whether DPS or OLS charged women with criminal trespass in the other 38 out of the total 43 counties cooperating with OLS. Appellant, furthermore, failed to show that women somehow escaped the criminal justice system whereas men did not. And it was not shown that the women and other males turned over to federal authorities were not prosecuted under federal law. As the record shows for at least the five-county area, OLS transferred custody of women, family units, and other men over to federal agents capable of prosecuting migrants for federal offenses. Moreover, it is not certain that the women in question truly qualify as “similarly situated” persons in this context. Women cannot be interchangeably housed safely with men in detention facilities designed for men. Nevertheless, although Appellant’s evidence may be inappropriate in its scope, we shall assume for the sake of argument that Appellant has satisfied the first prong in showing a “discriminatory effect” in demonstrating a prima facie case for selective prosecution or enforcement. However, Appellant’s claim faces far more obstacles under the second prong. In alleging that the OLS “policy” and its resulting discriminatory effect was motivated by a discriminatory purpose, Appellant had to definitively show that an otherwise facially neutral law is being administered in bad faith—that it was “directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive” that equal protection of the law was denied. In Yick Wo, the plaintiff was able to demonstrate that a facially neutral ordinance was being enforced “exclusively” against Chinese individuals but not non-Chinese individuals in similarly situated conditions. There, the plaintiff was able to show that his permit was denied because he was Chinese. Thus, the underlying motivation behind the policy was demonstrably “unequal and oppressive.” In the instant case, we first note that Appellant has a questionable nexus between the “guidance email” and its alleged effect. The guidance email, by its own language, applied only to Val Verde County and Kinney County—not Maverick County where Appellant was arrested, nor the entire five-county area. To the extent that it influenced DPS arrests in Maverick County, Appellant is unable to show that he is being “invidiously” punished for criminal trespass because he is male. Betancourt’s guidance email did not target all males but only some males. To that extent that OLS targeted some males, the guidance was not motivated to target them to punish them because they were male. Appellant was also unable to show that the criminal trespass law was “directed so exclusively against” all males. Betancourt’s email explicitly listed examples involving males that DPS Troopers were to turn over to border patrol instead. These included males that were minors or part of a family unit in the company of a minor. Betancourt also added to these with the exemption for adult males who were “60-plus or injured.” Witness testimony suggested that jail capacity limitations within the five-county area during an ongoing state of emergency were the factors actually driving the Betancourt’s evolving “guidance.” Appellant’s own exhibits demonstrated the large numbers of migrants crossing the border illegally. One of Appellant’s own exhibits from his pretrial habeas brief estimated that more than 265,500 unauthorized migrants had been detained or “apprehended” in the roughly year-long period contemporaneous to Appellant’s arrest. As observed by the trial judge, this was a mere fraction out of the estimated “three million” that had illegally crossed the border in the past year-and-half and “couple hundred thousand in Maverick County” alone. The vast majority of these individuals, according to one DPS trooper and as Appellant’s best comparator evidence demonstrates, were male. These substantial disparities in the demography likely have had an outsized influence on the disparities in the outcome. Presuming that the State understands it is operating with limited resources during an ongoing state of emergency and trying to achieve a maximum deterrence value, it would not be illogical nor unreasonable for the State to adjust their strategy on the allocation of existing jail space and the creation of additional jail space. Nor would it be objectively unreasonable nor arbitrary in adjusting their arrest targets as jail availability fluctuates. The evidence demonstrates far more heavily that the necessities of reality during an ongoing emergency (limited resources in the face of “sheer numbers”), rather than gender discrimination, was more likely the motivation for any discriminatory effect. Moreover, any person not formally arrested was not released, but instead transferred to the custody of the U.S. Border Patrol—which may very well had criminal consequences. Conclusion In summary, Appellant’s case is cognizable, but he has failed to meet his burden in demonstrating a prima facie case that he is being arrested and prosecuted because of his gender. We recognize and are concerned by at least the appearance of a discriminatory impact in the subjects of this case and others in the five-county area. Nevertheless, Appellant’s evidence fails to meet the “demanding” standard required for judicial interference in the State’s discretion in administering criminal justice policy and priorities. Appellant did not show by “exceptionally clear evidence” that the OLS mindset administering the facially neutral criminal trespass law was “so unequal and oppressive” against him because he is male. We reverse the court of appeals and affirm the trial court’s denial of Appellant’s pretrial writ of habeas corpus on the merits. Filed: October 9, 2024 Publish
