United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                       REVISED APRIL 8, 2004
               IN THE UNITED STATES COURT OF APPEALS           March 23, 2004
                       FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 03-40905


          VICTOR HUGO SALDANO

                           Petitioner - Appellee

          DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
          JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                           Respondent - Appellee

          v.

          JOHN R ROACH, District Attorney of Collin County, Texas

                           Movant Plaintiff - Appellant


          Appeal from the United States District Court
                for the Eastern District of Texas


Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

KING, Chief Judge:

     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

                                  1
     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

                                 2
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.1   The Attorney General

confessed error in Saldano’s sentencing and declined to raise

Saldano’s procedural default as a defense.   The Supreme Court

vacated the judgment against Saldano and “remanded to the Court

of Criminal Appeals of Texas for further consideration in light

of the confession of error.”   Saldano v. Texas, 

,

1212 (2000).2

     1
          The District Attorney sought leave to file a brief with
the Supreme Court defending the judgment of the Court of Criminal
Appeals, but the Supreme Court denied this request.
     2
          Following the Supreme Court’s ruling in Saldano, four
other state inmates, each of whom had been sentenced to death as
a result of punishment-phase hearings in which Dr. Quijano gave
substantially similar testimony, petitioned for federal writs of
habeas corpus. The Attorney General confessed error in each case
and, in each, the federal court vacated the death sentence and
granted a new sentencing hearing. See Alba v. Johnson, No. 00-
40194 (5th Cir. Aug. 21, 2000) (unpublished opinion); Broxton v.

                                 3
     On remand, the State Prosecuting Attorney,3 with the

District Attorney’s help, represented the State before the Court

of Criminal Appeals.   The Attorney General submitted a brief as

amicus curiae.   Once again, the Court of Criminal Appeals ruled

that Saldano’s claim was procedurally barred.     Saldano v. State,

, 891 (Tex. Crim. App. 2002) (en banc).

     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




Johnson, No. H-00-CV-1034 (S.D. Tex. Mar. 28, 2001) (unpublished
opinion); Blue v. Johnson, No. H-99-0350 (S.D. Tex. Oct. 2, 2000)
(unpublished opinion); Garcia v. Johnson, No. 99-CV-00134 (E.D.
Tex. Sept. 7, 2000) (unpublished opinion).
     3
           The State Prosecuting Attorney has primary authority
for representing the State before the Texas Court of Criminal
Appeals, but a district attorney may assist the State Prosecuting
Attorney. Saldano v. State, 

, 876-77 (Tex. Crim.
App. 2002) (en banc) (citing TEX. GOV’T CODE ANN. § 42.001(a) for
the authority of the State Prosecuting Attorney); TEX. GOV’T CODE
ANN. § 42.005(b). Article 2.01 of the TEXAS CODE OF CRIMINAL PROCEDURE
outlines the scope of authority of a district attorney.

                                  4
intervention.4

     The District Attorney appealed.    In Saldano v. O’Connell,

, 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.     

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, 

(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.

                          II.   INTERVENTION

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, 

          The district court did, however, allow the District
Attorney to file a brief as an amicus curiae.

                                  5
1202, 1205 (5th Cir. 1994); cf. 6 JAMES WM. MOORE   ET AL.,   MOORE’S

FEDERAL PRACTICE § 24.24[2][b], at 24-94 to 24-95 (3d ed. 2003)

(describing circuit split).5

B.   Intervention as of Right

     Intervention as of right under Rule 24(a)(2) is proper when:

     (1) the motion to intervene is timely; (2) the potential
     intervener asserts an interest that is related to the
     property or transaction that forms the basis of the
     controversy in the case into which she seeks to
     intervene; (3) the disposition of that case may impair or
     impede the potential intervener’s ability to protect her
     interest; and (4) the existing parties do not adequately
     represent the potential intervener’s interest.

Doe v. Glickman, 

, 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.”   

.   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.   

.         Not

     5
          A different standard of review applies to the district
court’s decision regarding the timeliness of the potential
intervenor’s application, see 

n.2, but
timeliness is not at issue here, since all parties agree that the
District Attorney’s application was timely.

                                 6
any interest, however, is sufficient; the interest must be

“direct, substantial, [and] legally protectable.”      

(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., 

, 464 (5th Cir. 1984) (en banc).      In addition,

the intervenor should be the real party in interest regarding his

claim.   

suit against Director Dretke, the real party in

interest is the State of Texas.       See Diamond v. Charles, 

, 57 n.2 (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, 

, 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).6   Instead, as the District Attorney concedes, Texas

     6
          Art. 2.01 of the TEXAS CODE OF CRIMINAL PROCEDURE provides:
     Each district attorney shall represent the State in all

                                  7
law gives the Attorney General the authority to represent

Director Dretke and the State in suits such as this.    See Sierra

Club v. City of San Antonio, 

, 314 (5th Cir. 1997)

(“Under Texas law, the Attorney General enjoys an exclusive right

to represent state agencies; other attorneys who may be permitted

to assist the Attorney General are subordinate to his

authority.”); League of United Latin Am. Citizens, Council No.

4434 v. Clements, 

, 844 (5th Cir. 1993) (en banc)

(“The Attorney General may represent state officials in their

official capacities . . . .”).

     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



     criminal cases in the district courts of his district and
     in appeals therefrom, except in cases where he has been,
     before his election, employed adversely. When any
     criminal proceeding is had before an examining court in
     his district or before a judge upon habeas corpus, and he
     is notified of the same, and is at the time within his
     district, he shall represent the State therein, unless
     prevented by other official duties. It shall be the
     primary duty of all prosecuting attorneys, including any
     special prosecutors, not to convict, but to see that
     justice is done. They shall not suppress facts or secrete
     witnesses capable of establishing the innocence of the
     accused.

                                 8
services of other lawyers are utilized, they must be ‘in

subordination’ to his authority.”      Hill v. Tex. Water Quality

Bd., 

, 741 (Tex. Civ. App.--Austin 1978, writ ref’d

n.r.e.); cf. 

(“[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, 

, 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., 

.

     Nevertheless, the District Attorney argues that his

intervention is proper in light of Baker v. Wade, 

(5th Cir. 1985) (en banc), overruled on other grounds by Lawrence

v. Texas, 

(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.

  A district attorney, who was an unnamed member of

                                   9
the defendant class, sought to appeal the district court’s

judgment, since the Attorney General had declined to do so.     

attorney filed a motion to intervene and to be named

a class representative, and a Fifth Circuit judge granted the

motion.   

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.

     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.7

Furthermore, in Baker, the injunction clearly impaired the

district attorney’s ability to carry out his official duties

under state law because it prevented him from enforcing one of

Texas’s criminal laws.    Here, by contrast, the District Attorney

     7
           Because, however, the District Attorney must still
“represent the State in all criminal cases in the district courts
of his district and in appeals therefrom,” TEX. CODE CRIM. PROC.
ANN. art. 2.01, he is “bound” to make a decision on how to
proceed in the light of intervening decisions. Naturally, in
exercising that authority and carrying out that responsibility,
he is obligated, as an attorney and officer of the court, to heed
governing caselaw.

                                  10
has not been prevented from performing his duties under Texas law

because he may still seek the death penalty in this and other

cases.8   Thus, the District Attorney has not demonstrated that

his interest in this case is “substantial” and “legally

cognizable” like the district attorney’s interest in Baker.

Consequently, while intervention was proper in Baker, it is not

proper under the facts of this case.9

     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



     8
           Although the District Attorney may no longer elicit
testimony regarding the correlation between race and future
dangerousness, the district court’s order has not impaired his
job function because, under Texas law, district attorneys are not
permitted to present such testimony in any case. 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.”).
     9
          We also note that we have never applied Baker in the
context of habeas corpus, and we see no reason to do so here.

                                11
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.   

.   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,

, 1005 (5th Cir. 1996) (en banc) (quoting Trbovich v.

United Mine Workers of Am., 

, 538 n.10 (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

                                12
default.   See, e.g., Alba v. Johnson, No. 00-40194 (5th Cir. Aug.

21, 2000) (unpublished opinion) (accepting the Texas Attorney

General’s confession of error);10 Brown v. State, 

, 664, 

, 751 (1923) (accepting the Attorney

General’s confession of error); cf. McGee v. Estelle, 

, 1212 (5th Cir. 1984) (“As the chief legal officer of the

state, the attorney general is the appropriate person to assert,

or to waive” habeas exhaustion requirements.).    The Attorney

General is not an inadequate representative simply because he has

taken these actions, especially when state law gives him the

authority to do so.

     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.”   

.   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

     10
          Alba involved almost identical facts--indeed, even the
same expert witness--as this case.

                                 13
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,

     In this case where the district court has rejected
     binding Supreme Court authority, the circuit court is
     entitled to conclude as a matter of law that those
     interests were inadequately represented by those who
     failed to pursue the appeal and that the state officer
     seeking to intervene was a proper party to do 

.    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.    

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, 

, 309 n.30 (1987) (“The Constitution prohibits racially biased

prosecutorial arguments.”); Baldwin v. Alabama, 

, 382


                                  14
(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, 

, 885 (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 Supreme

Court authority in so doing.11    Cf. Trest v. Cain, 

,

89 (1997) (“[P]rocedural default is normally a ‘defense’ that the

State is ‘obligated to raise’ and ‘preserv[e]’ if it is not to

‘lose the right to assert the defense thereafter.’” (second

alteration in original) (quoting Gray v. Netherland, 

, 166 (1996))); 2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS

CORPUS PRACTICE & PROCEDURE § 31.2a (4th ed. 2001) (“[T]he ‘harmless

error’ obstacle does not arise unless the state asserts it; the

state’s failure to do so in a timely and unequivocal fashion

waives the defense.”).    Consequently, there is no reason to

     11
          As the District Attorney points out, Coleman v.
Thompson held that federal habeas review is barred--absent a
showing of cause and prejudice, or a fundamental miscarriage of
justice--when a state prisoner has defaulted his federal claim
pursuant to an adequate and independent state bar, such as
Texas’s contemporaneous objection rule. 

, 750
(1991). The district court did not violate the rule announced in
Coleman, however, when it granted habeas relief to Saldano.
Coleman does not prevent a State from waiving a procedural bar in
the first place. See Trest v. Cain, 

, 89 (1997)
(holding that procedural default is a defense that the State must
raise).

                                   15
conclude that the Attorney General’s decision not to appeal makes

him an inadequate representative of the State’s interest.

     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:

          The district attorney argues finally that he and the
     State Prosecuting Attorney should be allowed to file
     separate petitions because they have different interests:
     he wants to win only one case, while the State
     Prosecuting Attorney has to look out for all the cases of
     all the prosecutors of the state.        We emphatically
     disagree. The State of Texas has only one, indivisible
     interest in a criminal prosecution: to see that justice
     is 

(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

                                 16
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.12

     Because we conclude that the District Attorney does not have

a “direct, substantial, and legally protectable interest” in

these proceedings, and that any interest he does have is

adequately represented by the Attorney General, we hold that the

district court properly denied his application for intervention

under Rule 24(a)(2).    See 

(“If a party

seeking to intervene fails to meet any one of [Rule 24(a)(2)’s]

requirements, it cannot intervene as a matter of right.”).

                 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,

, 304 (1988) (“The rule that only parties to a

lawsuit, or those that properly become parties, may appeal an



     12
          The District Attorney also suggests that Attorney
General is inadequately representing the State’s interest by
failing to defend the Court of Criminal Appeals’s decision in
Saldano v. 

. The Court of Criminal
Appeals, however, does not alone express the will of the State;
before our court, the Attorney General is the proper official to
speak for the State. As we stated in McGee, “[d]eference is due
the states, as governmental units, not their courts, their
executives, or their legislatures, save as these bodies represent
the state 

.

                                 17
adverse judgment, is well settled.”); 

(“[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].”).

                        IV.     CONCLUSION

     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.




                                 18