Victor Hugo Saldano was convicted of a capital offense and sentenced to death. Saldano subsequently filed a petition for writ of habeas corpus in federal court challenging his sentence. John R. Roach, the District Attorney of Collin County, Texas, appeals the district court's denial of his application to intervene as of right in Saldano's habeas corpus suit. For the following reasons, we affirm in part and dismiss in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1996, a Texas jury convicted Saldano of capital murder. During the punishment phase of Saldano's trial, the Collin County District Attorney ("District Attorney") called Dr. Walter Quijano, a psychologist, to testify as an expert witness. Dr. Quijano provided the jury with a list of twenty-four unweighted factors that he advised the jury to use in evaluating Saldano's future dangerousness. One of the factors was race. As to this factor, Dr. Quijano stated that Saldano was Hispanic, pointed out that Hispanics were over-represented in the Texas prison system, and opined that there was a correlation between race and ethnicity and future dangerousness. During closing arguments, the District Attorney reminded the jury to consider the twenty-four factors laid out by Dr. Quijano when assessing Saldano's future dangerousness. Saldano did not object either to Dr. Quijano's testimony or to the District Attorney's reference to it during his closing argument; instead, he met Dr. Quijano's testimony through cross-examination and the presentation of a rebuttal witness.
After hearing all the evidence, the jury found that there was a probability that Saldano would commit criminal acts of violence that would constitute a continuing threat to society. In addition, the jury found insufficient mitigating circumstances to warrant life imprisonment rather than the death penalty. Consequently, the trial judge sentenced Saldano to death.
Saldano appealed directly to the Texas Court of Criminal Appeals, claiming that he had been denied due process of law because his race and ethnicity were improperly used to support a finding of future dangerousness during the punishment phase of his trial. The District Attorney argued that, because Saldano did not object to Dr. Quijano's testimony, Saldano's claim was procedurally barred by Texas's contemporaneous objection rule. The Court of Criminal Appeals affirmed Saldano's conviction and sentence, after finding that Saldano's claim was, indeed, procedurally barred.
The United States Supreme Court granted certiorari. Before the Supreme Court, the Attorney General of the State of Texas assumed representation of the State.
Saldano subsequently petitioned the United States District Court for the Eastern District of Texas for a writ of habeas corpus. The Attorney General — representing Doug Dretke, in his official capacity as Director of the Texas Department of Criminal Justice, Institutional Division — confessed error and waived Saldano's procedural default. The District Attorney filed an application to intervene as of right to oppose Saldano's petition on procedural-default and harmless-error grounds. The district court held that the political-question doctrine prevented it from considering the merits of the District Attorney's application for intervention.
The District Attorney appealed. In Saldano v. O'Connell, 322 F.3d 365, 371 (5th Cir.2003), we held that the district court erred in finding that the District Attorney's application for intervention presented it with a non-justiciable political question. Therefore, we reversed the district court's order and remanded the District Attorney's application to the district court for disposition on the merits. Id.
On remand, the district court denied the District Attorney's application for intervention and granted Saldano's petition for a writ of habeas corpus. Saldano v. Cockrell, 267 F.Supp.2d 635 (E.D.Tex.2003). The District Attorney appeals both the order denying his application for intervention and the judgment granting Saldano's petition for a writ of habeas corpus. Director Dretke did not appeal the district court's judgment, but he did file a brief in opposition to the District Attorney's appeal.
A. Standard of Review
This court reviews de novo a district court's decision to deny an application for intervention under Rule 24(a)(2) of the Federal Rules of Civil Procedure. Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.1994); cf. 6 JAMES WM. MOORE et al., MOORE'S FEDERAL PRACTICE § 24.24[b], at 24-94 to 24-95 (3d ed. 2003) (describing circuit split).
B. Intervention as of Right
Intervention as of right under Rule 24(a)(2) is proper when:
Doe v. Glickman, 256 F.3d 371, 375 (5th Cir.2001). The District Attorney claims that he meets all four of Rule 24(a)(2)'s requirements. The district court, however, ruled that the District Attorney did not meet the second requirement for intervention because he had failed to "establish that his direct, substantial, legally protectable interests [would] be impaired or impeded by the disposition of th[e] case in his absence as a party." Saldano, 267 F.Supp.2d at 641. We agree.
To meet the second requirement for Rule 24(a)(2) intervention, a potential intervenor must demonstrate that he has an interest that is related to the property or transaction that forms the basis of the controversy. Doe, 256 F.3d at 375. Not any interest, however, is sufficient; the interest must be "direct, substantial, [and] legally protectable." Id. at 379 (alteration in original) (internal quotation marks omitted). We have explained that "the interest [must] be one which the substantive law recognizes as belonging to or being owned by the applicant." New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir.1984) (en banc). In addition, the intervenor should be the real party in interest regarding his claim. Id.
In this suit against Director Dretke, the real party in interest is the State of Texas. See Diamond v. Charles, 476 U.S. 54, 57 n. 2, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) ("A suit against a state officer in his official capacity is, of course, a suit against the State."). And, although the District Attorney claims to have the authority to act as the State's representative in this case, state law provides otherwise. Under Texas law, a district attorney's duties and responsibilities are defined by statute. State v. Allen, 32 Tex. 273, 275 (1869). Texas law does not grant district attorneys the authority to represent either state officials, such as Director Dretke, or the State in a federal habeas corpus proceeding. See TEX.CODE CRIM. PROC. ANN. art. 2.01 (Vernon Supp. 2004) (outlining the duties of district attorneys).
Furthermore, since the Attorney General is properly representing the State in this case, Texas law does not permit the District Attorney to assume representation of the State as well. Under Texas law, "either the Attorney General or a county or district attorney may represent the State in a particular situation, but these are the only choices, whichever official represents the State exercises exclusive authority and if services of other lawyers are utilized, they must be `in subordination' to his authority." Hill v. Tex. Water Quality Bd., 568 S.W.2d 738, 741 (Tex.Civ.App. — Austin 1978, writ ref'd n.r.e.); cf. Saldano, 70 S.W.3d at 883 ("[T]he State has only one interest in a criminal case, and the State can be represented by only one attorney in making such decisions as whether to seek review and whether to confess error."). As the Texas Court of Criminal Appeals aptly noted in a state habeas appeal: "In every appeal, such decisions must be made as whether to appeal, ... what points to raise[,] whether to confess error, ... whether to seek further review and on what grounds. Some one person must make these decisions; there cannot be conflicting decisions." Ex Parte Taylor, 36 S.W.3d 883, 887 (Tex.Crim.App.2001) (en banc) (per curiam). In sum, Texas law does not grant the District Attorney the authority to represent the State here. Thus, the District Attorney's interest in this case is not "one which the substantive law recognizes as belonging to or being owned by the applicant." New Orleans Pub. Serv., Inc., 732 F.2d at 464.
Nevertheless, the District Attorney argues that his intervention is proper in light of Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) (en banc), overruled on other grounds by Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). In Baker, a federal district court ruled that Texas's sodomy statute was unconstitutional and enjoined a class of Texas officials from enforcing the statute. Id. at 291. A district attorney, who was an unnamed member of the defendant class, sought to appeal the district court's judgment, since the Attorney General had declined to do so. Id. The district attorney filed a motion to intervene and to be named a class representative, and a Fifth Circuit judge granted the motion. Id. The en banc court ruled that the district attorney had a sufficient interest in the suit for purposes of intervention because he had been specifically enjoined by the district court from enforcing Texas's sodomy statute and, thus, his power to enforce the State's criminal laws had been impaired. Id. at 291-92.
The District Attorney's reliance on Baker is misplaced. Unlike the district attorney in Baker, who was an unnamed member of the defendant class, the District Attorney is not a party to this case. Therefore, the District Attorney is not legally bound by the district court's decision to grant habeas relief in the same way in which the district attorney in Baker was bound.
It is true that the District Attorney will be affected, as a practical matter, by the district court's order. The District Attorney certainly worked hard to obtain a conviction and to defend the conviction and sentence on appeal. Understandably, the District Attorney does not wish to undergo the costs and burdens of conducting a new sentencing hearing. If this were a sufficient interest to justify intervention, however, a state district attorney would be able to intervene in almost any habeas corpus suit where he did not agree with the Attorney General's method of representing the State. This outcome would be contrary to state law, which has chosen the Attorney General, rather than the various district attorneys, to represent the State in federal habeas corpus suits.
Furthermore, even if the District Attorney's interest in this suit were sufficient to permit his intervention, we would nevertheless conclude that Rule 24 intervention is improper because the District Attorney has not demonstrated that he meets the fourth requirement for intervention: that his interest is inadequately represented by the existing parties. Doe, 256 F.3d at 375. To meet this requirement, a potential intervenor must show that the representation of his interest by existing parties to the suit "`may be'" inadequate. Edwards v. City of Houston, 78 F.3d 983, 1005 (5th Cir.1996) (en banc) (quoting Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972)).
The District Attorney contends that the Attorney General is not representing his interest in this case because the Attorney General is not adequately representing the State's interest. According to the District Attorney, the Attorney General's representation of the State's interest is inadequate because the Attorney General "aligned himself with Saldano and joined Saldano in urging the district court to vacate Saldano's sentence" and because the Attorney General did not appeal the district court's order granting habeas relief to Saldano.
As the District Attorney has conceded, however, the Attorney General has discretion to confess error and to waive procedural default. See, e.g., Alba v. Johnson, No. 00-40194, 232 F.3d 208, 2000 WL 1272983 (5th Cir. Aug. 21, 2000) (unpublished opinion) (accepting the Texas
It is true that, in exercising his discretion to confess error and to waive procedural default, "the Attorney General cannot bind state officials, his clients, to his own policy preferences." Clements, 999 F.2d at 840. There is no indication, however, that the Attorney General is acting contrary to the will of the State or his client, Director Dretke. Indeed, there is evidence that the Attorney General's confession of error and waiver of procedural default furthers the State's goal of ensuring that capital sentencing is untainted by racial prejudice, as manifested by recently enacted state legislation. See TEX.CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(2) (Vernon Supp. 2004) ("[E]vidence may not be offered by the state to establish that the race or ethnicity of the defendant makes it likely that the defendant will engage in future criminal conduct.").
Moreover, the Attorney General's failure to appeal does not make him an inadequate representative of the State's interest. In Baker, we stated that,
769 F.2d at 292. According to the District Attorney, Baker stands for the proposition that a party's failure to appeal an adverse judgment renders the party an inadequate representative of the potential intervenor's interest. Crucial to our holding in Baker, however, was not simply that the Attorney General chose not to appeal, but that the Attorney General failed to appeal where, as the en banc court saw it, "binding Supreme Court authority" indicated that the statute was not, in fact, unconstitutional. Id. While we need not decide whether the Attorney General's confession of error was correct — indeed, as we explain below, we do not have jurisdiction to decide this question — we can conclude that the district court, by accepting the Attorney General's confession of error, did not ignore binding Supreme Court authority. Cf. McCleskey v. Kemp, 481 U.S. 279, 309 n. 30, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) ("The Constitution prohibits racially biased prosecutorial arguments."); Baldwin v. Alabama, 472 U.S. 372, 382, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985) ("[A] death sentence based upon consideration of `factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race ... of the defendant,' would violate the Constitution." (dictum) (quoting Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983))). Similarly, without deciding whether the district court was correct in accepting the State's waiver of procedural default and waiver of harmless error, we hold that the district court did not ignore
Finally, the District Attorney contends that the Attorney General inadequately represents his interest because the Attorney General's position in this case is directly contrary to the position taken by the District Attorney. In Ex Parte Taylor, the Court of Criminal Appeals rejected a very similar argument:
36 S.W.3d at 887 (footnote omitted). In other words, even though the Attorney General and the District Attorney might choose to vindicate the State's interest in different ways, the fact remains that the Attorney General and the District Attorney share an identical interest in this case: to see that justice is done. See TEX.CODE CRIM. PROC. ANN. art. 2.01 (Vernon Supp. 2004) ("[T]he primary duty of all prosecuting attorneys [is] not to convict, but to see that justice is done."). In confessing error and waiving Saldano's procedural default, the Attorney General has taken the position that justice in this case requires that Saldano be resentenced. This choice is not unreasonable under the circumstances. Simply because the District Attorney would have made a different decision does not mean that the Attorney General is inadequately representing the State's interest — and hence, the District Attorney's claimed interest — especially since state law specifically gives the Attorney General the discretion to make these kinds of decisions.
III. GRANT OF HABEAS RELIEF
In light of our ruling on intervention, we do not have jurisdiction to address the remaining issues raised by the District Attorney in his appellate brief. See Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) ("The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled."); Edwards, 78 F.3d at 993 ("[B]ecause [the applicants] were denied leave to intervene, and thus never obtained the status of party litigants in this suit, we dismiss their appeals, insofar as they seek review of the district court's final judgment [on the merits].").
Accordingly, we AFFIRM the district court's order denying the District Attorney's application to intervene in this case and DISMISS the District Attorney's appeal of the district court's order granting habeas relief.