Saldano v. State

• Decision Date: 13 March 2002
• Docket Number: No. 72,556.,72,556.
• Parties: Victor Hugo SALDANO, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

70 S.W.3d 873

Victor Hugo SALDANO, Appellant, v. The STATE of Texas.

No. 72,556.

Court of Criminal Appeals of Texas, En Banc.

March 13, 2002.

Stanley G. Schneider, Scott J. Atlas, Amicus Curiae, Houston, Gregory S. Coleman, Assist. AG, Austin, for appellant.

John A. Stride, Assist. DA, McKinney, Matthew Paul, St. Att., Austin, for state.

Before the court en banc.

WOMACK, J., delivered the opinion of the Court, in Part I of which all Members of the Court joined, and in Part II of which KELLER, P.J., and MEYERS, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

This case comes before us again on remand from the Supreme Court of the United States. After we affirmed his conviction on September 15, 1999, the appellant petitioned the Supreme Court for a writ of certiorari. The question for review was, "Whether a defendant's race or ethnic background may ever be used as an aggravating circumstance in the punishment phase of a capital murder trial in which the State seeks the death penalty."¹ The Attorney General of Texas filed a response to the petition, in which he confessed that the prosecution's introduction of race as a factor for determining "future dangerousness" constituted a violation of the appellant's rights to equal protection and due process.² The Supreme Court granted the petition, summarily vacated our judgment, and remanded the case to us "for further consideration in light of the confession of error by the Solicitor General of Texas."³

I.

At the threshold is a question of the attorney general's authority to confess error for the State in a certiorari proceeding in a criminal case before the Supreme Court. The question arises because no constitutional or statutory provision gives the attorney general authority to represent the State in such proceedings or, indeed, in any criminal proceeding. We directed the parties, and invited the Attorney General, to brief and argue the issue. They have done so.

A. Constitutional and Statutory Authority of the County and District Attorneys

The duty of criminal prosecution in the trial courts of record is on the county attorney and the district attorney (or criminal district attorney). In the courts of appeals the duty is on the same officers and on the state prosecuting attorney. In the court of criminal appeals, the duty is on the state prosecuting attorney, with the assistance of the county and district attorneys.

Every constitution of Texas, as a republic and as a state, has provided for district attorneys to represent Texas in criminal prosecutions. The office of district attorney has always been in the judicial department of government.⁴ The office of county attorney was added to the judicial department in 1866 when the county court was created with jurisdiction of misdemeanor and petty offenses.⁵ The present Constitution gives the authority to prosecute criminal cases to the county attorneys, criminal district attorneys, and district attorneys, under the regulation of the legislature:

A County Attorney, for counties in which there is not a resident Criminal District Attorney, shall be elected by the qualified voters of each county, who shall be commissioned by the Governor, and hold his office for the term of four years. In case of vacancy the Commissioners Court of the county shall have the power to appoint a County Attorney until the next general election. The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; but if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature.⁶

The legislature has regulated the duties of the district attorneys and county attorneys by giving only to them the authority to prosecute criminal cases, and by giving them authority to represent the State in appeals.⁷ Their authority to represent the State in appeals is limited only by a special statute that creates in the judicial department the office of state prosecuting attorney, which has primary authority to represent the State in this Court and authority to represent the State in the intermediate courts of appeal if the state prosecuting attorney considers it necessary.⁸ District and county attorneys may assist the state prosecuting attorney in representing the State in this Court.⁹ They have the primary authority to represent the State on appeal in other courts,¹⁰ subject to the state prosecuting attorney's authority to intervene in a court of appeals.

This diffusion of the authority to prosecute is in keeping with the deliberately "fractured" nature of Texas government, in which the "framers of our constitution, influenced by the political philosophy of the Jacksonian era and the despotic control of the reconstruction governor, deliberately chose to decentralize executive authority."¹¹

[T]he State of Texas ... has given its authority to prosecute [criminal] cases to more than three hundred independently elected prosecutors, each of whom exercises authority in an area of the state no larger than a judicial district. This model differs from the federal model not only because there is no central prosecuting authority, but also because the prosecutors are officers of the judicial branch of government.¹²

The Constitution and laws, therefore, have deliberately and expressly given district attorneys and county attorneys general authority to represent the State in appeals of criminal cases.

B. Constitutional and Statutory Authority of the Attorney General

The attorneys general of most states have authority to prosecute criminal cases.

The structure of the office and the duties of the attorney general vary from state to state and are defined in state constitutions, statutes, and court decisions in varying degrees of detail and emphasis. However, to the extent a common thread can be discerned, the duties have been summarized as follows: providing informal legal advice and formal legal opinions to the governor and other state officials and agencies and sometimes the legislature; representing the state, state agencies, and state officers in litigation; enforcing state civil and criminal law; and supervising local prosecutors in some states....

Although the duty is shared in a variety of ways with local government prosecutors, most state attorneys general have as one of their responsibilities the investigation and prosecution of state criminal offenses.¹³

The office of attorney general of Texas has never had authority to institute a criminal prosecution. Before 1876 it had constitutional authority to represent the State in appeals of criminal cases, and it had statutory authority to do so until 1923. Since then it has had no authority to represent the State in a criminal case in any court, except when a county or district attorney requests it to assist.

The Constitution of the Republic of Texas did not create an office of attorney general, although it did create the office of district attorney. The executive officers were a president,¹⁴ a vice-president,¹⁵ a secretary of state,¹⁶ and "such other heads of executive departments as may be established by law."¹⁷ The first act of the First Congress created four other executive offices, including that of attorney general.¹⁸ The duties of these officers were described only in general terms.¹⁹

When Texas was admitted to the Union, the office of attorney general appeared in the judicial article of the state constitution of 1845, which said only that the duties of the district attorneys and the attorney general were to be prescribed by law.²⁰ The First Legislature gave the district attorney the duty "to conduct all prosecutions for crimes and offenses cognizable in [the district] court,"²¹ and the attorney general the duty to "counsel and advise the several district attorneys ... whenever requested by them so to do."²²

These roles of the district attorneys and the attorney general in Texas were similar to those of the equivalent offices in the federal government at that time.

Unlike the present day, when the Department of Justice in Washington, headed by the Attorney General, and employing hundreds of lawyers, maintains tight control over the work of the U.S. Attorneys, the situation in 1861 was quite different. There was then, of course, an Attorney General who sat in the President's Cabinet, but he did not head a government department; the Department of Justice would not be created until 1870. And until Congress acted in August 1861, the Attorney General had no authority to control the actions of the United States Attorneys in the various judicial districts. He could and did advise them on points of law or on government policy. But he gave advice, not direction.²³

The first attorney general of Texas also was given the duty "to prosecute and defend all actions in the supreme court of the State, in which the State may be interested."²⁴ Under this division of authority the attorney general appeared in criminal cases before the state's only appellate court, the Supreme Court.²⁵ District attorneys appeared with the attorney general in criminal cases before the appellate court from time to time.

In the Reconstruction Constitution of 1869, the office of attorney general moved to the executive department.²⁶

The Constitution of 1876, which still defines our government, kept the attorney general in the executive branch. The constitutional duties of the office are described thus:

The Attorney General shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party, and shall especially inquire into the charter rights of all private corporations, and from time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of...