Case Details


Attorney General Control Of Litigation, Criminal Authority

Filing State



U.S. Court of Appeals for the Fifth Circuit




Saldano v. Roach 363 F.3d 545 (5th Cir. 2004)


Attorney General has authority to represent the state in criminal appeals, and to control the appeal, rather than the District Attorney.

Case Description

The case arose out of a federal habeas corpus challenge by a state prisoner to his death sentence. The prisoner’s race and ethnicity were used to support a finding of future dangerousness during the punishment phase of the trial. The case was eventually appealed to the Supreme Court, at which time the Attorney General assumed representation of the state. The Attorney General confessed error and declined to raise the prisoner’s procedural default as a defense. The judgment was vacated and remanded in light of the confession of error. The Texas Court of Criminal Appeals once again ruled that the prisoner’s claim was procedurally barred, and the prisoner petitioned the U.S. District Court for a writ of habeas corpus. The Attorney General, representing the Director of the Texas Department of Criminal Justice, confessed error and waived the procedural default. The District Attorney applied to intervene, but the motion was denied and the District Attorney appealed. The Fifth Circuit found that the real party in interest in the case was the state of Texas, and state law gives the Attorney General authority to represent state officials and the state. The court stated, “In every appeal, such decisions must be made as whether to appeal, . . . what points to raise, whether to confess error. . . Some one person must make those decisions . . .” Although the District Attorney may not agree with the Attorney General’s decision to waive the procedural default, the Attorney General is authorized by law to make such decisions, and in this case, his decision “furthers the State’s goal of ensuring that capital sentencing is untainted by racial prejudice.” The court dismissed the District Attorney’s argument that the Attorney General was not adequately representing his interests because each presumably shares the interest in seeing that justice is done.