                      REVISED MARCH 14, 2003

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 02-41208
                       _____________________


          VICTOR HUGO SALDANO

                                Petitioner - Appellee

          JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
          JUSTICE, INSTITUTIONAL DIVISION

                                Respondent - Appellee

          v.

          TOM O’CONNELL, Collin County Criminal District Attorney

                                Movant - Appellant


_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
_________________________________________________________________
                         February 18, 2003

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

KING, Chief Judge:

     In 1996, Victor Hugo Saldano was convicted and sentenced to

death for the capital murder of Paul King.     On appeal, we are

asked to resolve whether the district court erred in holding that

the Collin County District Attorney’s application for intervention

presented it with non-justiciable political questions.
                     FACTUAL AND PROCEDURAL BACKGROUND

     The    Collin    County    District     Attorney’s      Office   (“District

Attorney”) represented the State of Texas in this case at trial and

on Saldano’s direct appeal of his death sentence to the Texas Court

of Criminal Appeals. During the punishment phase of the trial, the

District Attorney called clinical psychologist Dr. Walter Quijano

to testify as an expert regarding Saldano’s potential for being a

continuing threat to society.           Dr. Quijano identified twenty-four

unweighted “factors” that he deemed appropriate to the jury’s

sentencing determination. One of Dr. Quijano’s statistical factors

was race.     As to this factor, Dr. Quijano correlated the over-

representation of African Americans and Hispanics in the prison

population (when compared to their percentages of the general

population)    with      an    increased     susceptibility       for    “future

dangerousness”    within      these     races.     Because    Saldano   is   from

Argentina, Dr. Quijano further testified that Saldano would be

considered    Hispanic.        During    closing   arguments,     the   District

Attorney reminded the jury to rely on the twenty-four factors

outlined by Dr. Quijano in determining “future dangerousness” and

to take the formula of twenty-four factors and “plug it in.”

Saldano’s trial counsel failed to object to Dr. Quijano’s testimony

or the evidence and argument offered by the District Attorney

regarding race.




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     The jury ultimately found that Saldano presented a continuing

threat to society (by answering “yes” to the “future dangerousness”

special issue question) and Saldano was thereafter sentenced to

death by the trial court.   On direct appeal to the Texas Court of

Criminal Appeals, Saldano challenged the admissibility of Dr.

Quijano’s testimony.   In response, the District Attorney argued

that Saldano was procedurally barred from raising this claim.        The

Texas Court of Criminal Appeals agreed with the District Attorney

and affirmed the judgment of the trial court.

     On writ of certiorari to the United States Supreme Court,

however, the Attorney General of Texas (“Attorney General”) took

over the   representation   of   the   State.   The   Attorney   General

confessed error and declined to raise the procedural bar defense

previously argued by the District Attorney.1          The Supreme Court

thereafter vacated the judgment of the Texas Court of Criminal

Appeals and remanded to the court for further disposition in light

of the confession of error by the State.        Saldano v. Texas, 530

U.S. 1212 (2000).

     On remand to the Texas Court of Criminal Appeals, the Attorney

General again confessed error in the trial court.       The Texas Court

of Criminal Appeals, however, invited the District Attorney to file

a brief and to share in oral argument.     The District Attorney again

     1
          The District Attorney tendered to the Supreme Court a
brief in opposition to the Attorney General; however, the Supreme
Court returned it unfiled and denied the District Attorney leave
to file a brief amicus curiae.

                                   3
argued that any error had been waived by Saldano.           The court agreed

and affirmed the judgment of the trial court.               In so doing, it

found    that   evidence    regarding       the   correlation   of    race    and

recidivism did not constitute fundamental error and that “the

State’s confession of error in the Supreme Court of the United

States is contrary to our state’s procedural law for presenting a

claim on appeal, as well as the Supreme Court’s enforcement of such

procedural law when it is presented with equal-protection claims.”

Saldano v. State, 70 S.W.3d 873, 891 (Tex. Crim. App.                2002).

     Saldano subsequently filed a petition for writ of habeas

corpus in federal district court contending that the District

Attorney’s use of race as a factor in the jury’s evaluation of

future    dangerousness     constitutes       fundamental   error     requiring

reversal of his death sentence.              In response, Respondent Janie

Cockrell, through the Attorney General, acknowledged that “the

infusion of race as a factor for the jury to weigh in making its

determination    violated    [Saldano’s]       constitutional   right    to    be

sentenced without regard to the color of his skin,” and “seriously

undermined the fairness, integrity, or public reputation of the

judicial process.”         The Attorney General did not raise, as a

defense, that Saldano had waived this alleged error.             The District

Attorney moved to file a brief as amicus curiae; this motion was

granted by the district court.               While acknowledging that the

Attorney General is the proper respondent for the State in this

civil case, the District Attorney also filed an application to

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intervene as of right.             On July 16, 2002, the district court held

that the District Attorney’s application for intervention presented

it with non-justiciable political questions. The District Attorney

appeals this order.

                       JURISDICTION and STANDARD OF REVIEW

      Although the district court here styled its order as a denial

of the District Attorney’s application for intervention, it, in

fact, did not opine on the merits of the application because it,

sua sponte, found jurisdiction lacking.                       See, e.g., Gordon v.

Texas, 153 F.3d 190, 196 (5th Cir. 1998)(“We do not interpret the

district court’s opinion, however, to be a formal disposition of

the plaintiffs’ cases on these other bases.                    The court held that

the plaintiffs’ claims were nonjusticiable under the political

question doctrine.             Having concluded that it lacked the power to

adjudicate the plaintiffs’ claims, logically the district court

could not then proceed to address the merits of the other defenses

raised      by   the     defendants.”).          Instead,      the   district   court

specifically held that it had no jurisdiction to review the merits

of   the    application.           The    Supreme     Court    has   ruled    that   an

“abstention-based stay order [i]s appealable as a ‘final decision’

under      [28   U.S.C.]       §   1291   because     it    put[s]    the    litigants

effectively out of court, and because its effect [i]s precisely to

surrender jurisdiction of a federal suit.” Quackenbush v. Allstate

Ins. Co.,        517    U.S.    706,   713   (1996)    (internal     quotations      and



                                             5
citations omitted).       Likewise, as the district court order here

concluding that it had no jurisdiction to review the District

Attorney’s    application    for    intervention    “put    the   litigant[]

effectively    out   of     court,”    id.,   the   order     “conclusively

determine[d] an issue that is separate from the merits,” id. at

714, and is thus a “final decision” under § 1291.

     The district court’s order regarding its lack of jurisdiction

to review the District Attorney’s application for intervention is

a “final decision” for purposes of this court having jurisdiction

to hear the appeal under 28 U.S.C. § 1291.          The relevant question

of law that this court must review de novo, therefore, is whether

the district court properly held that the District Attorney’s

application for intervention presents non-justiciable political

questions.    See Guillory v. Cain, 303 F.3d 647, 650 (5th Cir. 2002)

(holding that questions of law are reviewed de novo).

ANALYSIS OF THE DISTRICT COURT’S ORDER and THE POLITICAL QUESTION

                                   DOCTRINE

     The district court sua sponte held that this case presents

political questions, stating that:

     Although the movant frames the issue as controlled by
     Fed. R. Civ. P. 24, whether to allow intervention under
     that rule cannot be separated from a political question.
     In other words, the question of whether a district
     attorney, who originally represented the state in
     criminal litigation, has a sufficient interest in the
     death sentence obtained in that litigation to allow him
     to intervene in collateral litigation about the
     constitutionality of the sentencing procedures employed


                                      6
     in that litigation is inextricably bound up with the
     question of whether the State of Texas would prefer to
     preclude the federal court from considering the merits of
     Saldano’s constitutional claim, or would instead prefer
     to allow the federal court to address the claim. The
     court must abstain from deciding political questions.
     See Public Citizen v. Bomer, 115 F. Supp. 2d 743, 746
     (W.D. Tex. 2000), aff’d on other grounds, 274 F.3d 212
     (5th Cir. 2001); see also Baker v. Wade, 769 F.2d 289,
     299 (5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986)
     (Rubin, J., dissenting).
Upon review, we conclude that the questions presented by the

District Attorney’s application for intervention are justiciable.

     Whether an issue presents a non-justiciable political question

cannot be determined by a precise formula.          The doctrine is

primarily rooted in the constitutional separation of powers among

the three branches of the federal government.         See Powell v.

McCormack, 395 U.S. 486, 518 (1969); Baker v. Carr, 369 U.S. 186,

210 (1962).     As observed by the Supreme Court in Baker v. Carr,

each of the varying formulations which may be used to describe a

non-justiciable political question “has one or more elements which

identify [the question] as essentially a function of the separation

of powers.”   Id. at 217.   The Baker Court outlined the scope of the

political question doctrine by reviewing several of these varying

formulations:

     Prominent on the surface of any case held to involve a
     political question is found a textually demonstrable
     constitutional commitment of the issue to a coordinate
     political   department;  or   a   lack  of   judicially
     discoverable and manageable standards for resolving it;
     or the impossibility of deciding without an initial
     policy determination of a kind clearly for nonjudicial

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       discretion; or the impossibility of a court’s undertaking
       independent resolution without expressing lack of the
       respect due coordinate branches of government; or an
       unusual need for unquestioning adherence to a political
       decision   already   made;   or   the   potentiality   of
       embarrassment from multifarious pronouncements by various
       departments on one question.

Id.      Threading     the     issues   raised   by    the   District   Attorney’s

application for intervention through the prism of non-justiciable

formulations provided for in Baker v. Carr reveals that the issues

here are extricable from those barred from justiciability by the

doctrine.

       The dominant consideration in any political question inquiry

is    whether   there     is    a   “textually   demonstrable       constitutional

commitment of the issue to a coordinate political department.”

Id.; see also      Nixon v. United States, 506 U.S. 224, 252-53 (1993)

(“Whatever considerations feature most prominently in a particular

case, the political question doctrine is essentially a function of

the    separation    of      powers,    existing      to   restrain   courts    from

inappropriate interference in the business of the other branches of

the Government, and deriving in large part from prudential concerns

about the respect we owe the political departments.”) (Souter, J.,

concurring) (internal citations and quotations omitted). Here, the

issues    raised     by      the    District     Attorney’s       application   for

intervention     are      not   issues    that   have      been   constitutionally

committed to coordinate branches or political departments.                       Cf.

Dickson v. Ford, 521 F.2d 234, 235-36 (5th Cir. 1975) (per curiam)


                                          8
(dismissing as non-justiciable an Establishment Clause challenge to

a statute authorizing $2.2 billion of emergency military assistance

to the State of Israel because authority for such action rested in

a coordinate branch of the federal government).                             Further, this

application for intervention does not present the district court

with a situation where it will lack judicially discoverable and

manageable    standards        for    resolving         the   intervention         question

because the federal rules and case law governing intervention will

serve as the benchmark for a disposition of the District Attorney’s

application.       See generally Nixon v. United States, 506 U.S. 224,

228-29    (1993)   (stating      that     these         two   concepts      (the   textual

commitment concept and the judicially discoverable and manageable

standards concept) are “not completely separate,” and that “the

lack   of   judicially     manageable             standards     may    strengthen      the

conclusion that there is a textually demonstrable commitment to a

coordinate branch”); Chisom v. Roemer, 501 U.S. 380, 402-03 (1991)

(rejecting    claim     that    vote     dilution        case   was    non-justiciable

because there are no judicially manageable standards for deciding

vote dilution);       United States v. Munoz-Flores, 495 U.S. 385, 395

(1990) (“The Government also suggests that a second Baker factor

justifies our finding that this case is nonjusticiable: The Court

could not fashion ‘judicially manageable standards’ for determining

either whether a bill is ‘for raising Revenue’ or where a bill

‘originates.’      We do not agree . . . To be sure, the courts must

develop     standards     for        making       the    revenue      and     origination

                                              9
determinations.”); cf. Trujillo-Hernandez v. Farrell, 503 F.2d 954,

955 (5th Cir. 1974) (“The question for decision is nonjusticiable.

The naturalization power is conferred on Congress in Article I,

Section 8, along with war power . . . It has never been supposed

that there are any judicially manageable standards for reviewing

the conduct of our nation’s foreign relations by the other two

branches of the federal government.”).          Nor does the application

for intervention present the district court with a situation where

it will be required to make a “policy” determination of the kind

clearly     for    non-judicial    discretion     simply     because   the

determination may touch on political issues.        See, e.g., League of

United Latin Am. Citizens v. Clements, 999 F.2d 831, 838 (5th Cir.

1993) (en banc) (reviewing the “political” dispute challenging the

single-district system of electing state trial judges in Texas in

a voting rights action involving the Attorney General of Texas and

the Texas Judicial Districts Board).

     Additionally, as demonstrated by the case law, an important

overlay exists to the formulations discussed in Baker v. Carr. The

parameters of the political question doctrine generally extend to

cover     the   federal   judiciary’s    relationship   to   the   federal

government and not the federal judiciary’s relationship to the

States.    See Elrod v. Burns, 427 U.S. 347, 351 (1976) (“A question

presented to this Court for decision is properly deemed political

when its resolution is committed by the Constitution to a branch of

the Federal Government other than this Court.           Thus, ‘it is the

                                    10
relationship between the judiciary and the coordinate branches of

the    Federal       Government,     and        not     the     federal       judiciary’s

relationship to the States, which gives rise to the political

question.’     That matters related to a State’s, or even the Federal

Government’s        elective   process     are        implicated      by    this   Court’s

resolution     of     a   question   is    not        sufficient      to     justify   our

withholding decision of the question.”) (quoting Baker v. Carr, 369

U.S. 186, 210 (1962)) (emphasis added).                       Here, it is undisputed

that there is simply no question that presents a conflict between

the federal judiciary and a coordinate branch of the federal

government.

       In Gordon v. State, 153 F.3d 190 (5th Cir. 1998), this court

reversed the district court’s holding that issues relating to the

erosion of beachfront property presented non-justiciable political

questions. Id. at 196.         There, the plaintiff property owners filed

suit in federal district court against the Gulf Coast Rod, Reel and

Gun Club, the State of Texas, and various state agencies, alleging

that    the    defendants      negligently            constructed,         dredged,    and

maintained the Rollover Fish Pass (an easement located in Galveston

County that had been granted to the State of Texas by the Gulf

Coast Rod, Reel and Gun sportsmen’s club).                      Id.        They sought an

injunction ordering the State to fill in the Pass and to pay money

damages.      Id.    The district court held that the issues were “far

more appropriate for resolution by Congress or agencies within the

Executive Branch” because the case presented policy decisions far

                                           11
afield of the court’s practical capacities.                       Gordon v. Texas, 965

F. Supp. 913, 916 (S.D. Tex. 1997), rev’d, 153 F.3d 190 (5th Cir.

1998).       Disagreeing, this court concluded that the district court

erroneously analyzed the political question issue.

       In so concluding, we stated that “it is fair to say that,

Guaranty Clause cases aside, the potential for a clash between a

federal court and other branches of the federal government is

fundamental to the existence of a political question; a simple

conflict between a federal court and state agencies does not

implicate the doctrine.”               Gordon, 153 F.3d at 194 (emphasis in

original).2          Because “the plaintiffs [there] ha[d] requested no

action be taken by any unit of the federal government,” id., we

held       that   “the     district    court       erred    when       it   dismissed   the

plaintiffs’ claims as nonjusticiable political questions.”                          Id. at

196.        Our   reasons     for    disagreeing      with       the    district   court’s

conclusion regarding the application of the political question

doctrine in Gordon similarly apply to the facts of this case.

       In     sum,    we    see     nothing    about       the    District     Attorney’s

application that removes it from the competence of the judiciary.

The reasons that supported the justiciability of challenges to

state legislative districts, Baker, 369 U.S. at 234-37, as well as

state districting decisions relating to the election of members of

       2
          The district court did not base its political question
holding on the Guaranty Clause and the District Attorney, on
appeal, does not contend that this case raises issues implicating
the Guaranty Clause.

                                              12
Congress, Karcher v. Daggett, 462 U.S. 725 (1983), as well as the

constitutionality of apportionment schemes, United States Dept. of

Commerce v. Montana, 503 U.S. 442, 458 (1992), as well as landowner

suits against various Texas agencies, Gordon, 153 F.3d at 193,

likewise support justiciability of the “political” issues presented

by the resolution of the District Attorney’s application for

intervention. The district court’s “alternative” holding in Public
Citizen v. Bomer, 115 F. Supp. 2d 743 (W.D. Tex. 2000), aff’d on
other grounds, 274 F.3d 212 (5th Cir. 2001), and a statement that
is not necessary to the reasoning of the dissent in Baker v. Wade,
769 F.2d 289, 299 (5th Cir. 2001) (en banc) (Rubin, J., dissenting)
– both relied on by the district court to support its determination
that the District Attorney’s application presents it with non-
justiciable political questions – do not persuade us otherwise.
                               CONCLUSION
     We   REVERSE   the   district   court’s   order   holding   that   the

political question doctrine prevents it from considering the merits

of the District Attorney’s application to intervene in this case

and REMAND the application to the district court for disposition on

the merits.




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