NO. 0652-00





Per Curiam. Keller, P.J., delivered a dissenting opinion in which Keasler and Holcomb, JJ., joined. Johnson and Hervey, JJ., not participating.

After the court of appeals reversed the district court's denial of habeas corpus relief, both the State Prosecuting Attorney and the District Attorney of the 85th Judicial District filed petitions for discretionary review. We asked the parties to brief the question, whether both officials should be permitted to file petitions of behalf of the State. We hold that the controlling statutes permit only one petition for discretionary review to be filed by the State, that a petition filed by the state prosecuting attorney is the petition of the State, and that submissions from other officials will be received in assistance of the state prosecuting attorney's petition.

Our holding is based on the Government Code, which establishes and regulates the office of state prosecuting attorney. The code establishes the duty and authority of the "state prosecuting attorney to represent the state in all proceedings before the court [of criminal appeals]." (1)

The code also establishes the authority of district and county attorneys in this court: "A district or county attorney may assist the state prosecuting attorney in representing the state before the court of criminal appeals." (2) On its face, this statute cannot easily be read to authorize a district or county attorney to file an independent petition for discretionary review in this court. Such a petition, which would be an alternative to that of the state prosecuting attorney, would not naturally be said to "assist" him.

Our reading of the statute is strengthened by comparison to other parts of these sections of the code. In one of the sections that we have quoted above, the code provides, "The state prosecuting attorney may assist a district or a county attorney in representing the state before a court of appeals if requested to do so by the district or county attorney." (3) In the other section, the code provides, "The state prosecuting attorney may also represent the state in any stage of a criminal case before a state court of appeals if he considers it necessary for the interest of the state." (4) These sections of the code "made it clear that the state prosecuting attorney's authority to appear in the courts of appeals is not dependent on a request from a district or county attorney." (5) The state prosecuting attorney may "assist" the local prosecutor "in representing the state" when requested, but may step in without the local prosecutor's request to "represent the state" when in his judgment it is necessary. In these parts of the same sections that we are construing, it is clear that "assisting" is a cooperative enterprise, while "representing the state" is an independent authority.

Therefore, we do not read the Government Code's authority for a district attorney to "assist" the state prosecuting attorney as authority to "represent the state" in an independent way that would compete with or supplant representation by the state prosecuting attorney.

The District Attorney rests his authority to do so on three arguments. One is that he has plenary authority to represent the State by the general grant of authority in article 2.01 of the Code of Criminal Procedure to "represent the State in all criminal cases in the district courts of his district and in appeals therefrom." He points to an earlier version of the bill that was enacted as article 2.01, which would have given the district attorney authority to represent the State only in the courts of appeals. He finds significant the amendment of the bill to give him authority to represent the State in all appeals. So do we, but we cannot attribute to this amendment an intention to authorize a district attorney to act independently of the state prosecuting attorney in this court. (6) The previous version of the bill would have left only the state prosecuting attorney with authority to represent the State in this court. The amendment to the bill was a decision by the legislature that that task should not rest on the state prosecuting attorney alone. If we attributed to the legislature an intent for that amendment to make the final statement of the district attorney's authority to represent the State in this court, we would have to ignore the relevant sections of the Government Code, which were enacted by the same legislature in the same session. We would also have to ignore our duty to give effect to all the statutes if a reasonable construction will do so. And we would have to forget the maxim that special statutes control over general statutes. Reading the statutes together, we hold that they give a district attorney authority to represent the State in this court when the state prosecuting attorney chooses not to do so, but only to assist him when the state prosecuting attorney chooses to exercise his authority to represent the State.

The district attorney's second argument is based on the long practice of both the local prosecutors and the state prosecuting attorney to file briefs in this court. This practice must be put in the context of history. From 1876 to 1923, the attorney general represented the State in the Court of Criminal Appeals (and its predecessor, the Court of Appeals). A legislative act in 1923 created the office of state prosecuting attorney to represent the State before the Court of Criminal Appeals because, according to the emergency clause of the act, the docket of the court was so crowded that the one assistant attorney general who was assigned to the court could not properly brief and argue the cases submitted to the court. (7) Two attorneys for the State were at first appointed by the governor. Some dissatisfaction with the governor's appointees is reflected in the 1931 act that gave the appointment power to this Court and required that the appointees have at least five years experience in practicing criminal law. (8) The state prosecuting attorney continues to be appointed by this Court, for a two-year term. (9)

From 1923 to 1981, the State had almost no role in bringing an action to this court.

The State had no right to appeal in criminal cases, by virtue of former section 26 of the judicial article of the state constitution. The State would only bring a case to this court in an application for an extraordinary writ, such as one of mandamus or prohibition. The State's almost exclusive role was as an appellee. The briefs of an appellee may be helpful to the court, but they are not essential. Like an omission from an appellee's brief, conflicts between two briefs for the appellee would be of little moment. Judgments will be upheld on appeal if they are correct under any provision of the law, even when the provision has not been cited by an appellee.

In 1981, when the intermediate courts of appeals gained jurisdiction of criminal appeals other than capital, the State acquired a more active role in bringing cases to this Court. It could petition this Court for discretionary review of an adverse decision of a court of appeals. For the first time in an appeal, conflicts and omissions in the State's pleadings could have significant effects on the disposition of an appeal. At the same time the statutory authority of the district attorney and the state prosecuting attorney were adjusted by statutory amendment, as we have explained above.

In 1987, when the Constitution was amended to give the State the right to appeal, the State finally attained the full status of an appellant. Appeals and petitions for discretionary review by the State have been in much smaller numbers than those by defendants. (10)

The District Attorney does not, and cannot, point to any considered decision by this Court since 1981 allowing both the state prosecuting attorney and the local prosecutor to seek review in this Court. The issue may have been belatedly noticed, but it is basic and important. Appellants are not allowed to have "hybrid representation" on appeal, in which an appellant and an attorney can present independent points to an appellate court. (11) The rule is equally important for both parties.

In every appeal, such decisions must be made as whether to appeal, what to designate for inclusion in the clerk's record, (12) what to designate in the reporter's record, (13) what points to raise (for the appellant), whether to raise cross-points (for the appellee), what arguments and authorities to present, whether to confess error, whether to request argument, (14) what points to argue, whether to seek rehearing, whether to seek further review and on what grounds. Some one person must make these decisions; there cannot be conflicting decisions. The District Attorney does not point to any other court that is called on in any case to entertain conflicting decisions made by two attorneys representing one party to a lawsuit.

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 done. (15) Different lawyers doubtless have different views of how the law should be shaped to achieve that goal, but that does not give them different interests. The state prosecuting attorney has a statewide view that a local prosecutor may not have, and this doubtless explains the legislature's choice to give the state prosecuting attorney the primary authority in this court and an authority to intervene in the courts of appeals. But it does not permit the State to take different positions in the same lawsuit.

In this case the State Prosecuting Attorney has exercised his authority to represent the State in this proceeding by filing a petition for discretionary review, and it is the State's petition in this case. The District Attorney's authority is only to assist the State Prosecuting Attorney. The Court has neither granted nor refused review on the District Attorney's petition. The petition has been received by the Court as an amicus curiae brief, for the assistance it may give. (16)

En banc.

Delivered February 28, 2001.


1. Tex. Gov't Code 42.001(a).

2. Id. 42.005(b).

3. Id. 42.005(a).

4. Id. 42.001(a).

5. Aguirre v. State, 22 S.W.3d 463, 465 (Tex. Cr. App. 1999).

6. Cf. id. at 469 (Section of Government Code requiring that "all appeals from convictions in the municipal court of record must be prosecuted in the appellate court, the court of appeals, or the court of criminal appeals by the city attorney" did not usurp the authority of the state prosecuting attorney to represent the State in this court).

7. Act of March 23, 1923, 38th Leg., R.S., ch. 156, 1923 Tex. Gen. Laws 335.

8. Act of May 18, 1931, 42d Leg., R.S., ch. 139, 1931 Tex. Gen. Laws 234. The emergency clause spoke of the "importance of increasing the qualifications of the attorney." Id., 2. The act, as amended, is now codified in Tex. Gov't Code ch. 42.

9. See Tex. Gov't Code 42.001(a).

10. In State Fiscal Year 1999, for example, defendants filed 1856 petitions, while the State filed 203. See Office of Court Administration, Annual Report of the Texas Judicial System -- Fiscal Year 1999 79 (2000). The number of cases in which the State was a petitioning party was, of course, less than 203, since in some cases two petitions were filed for the State by the State Prosecuting Attorney and the local prosecutor.

11. Patrick v. State, 906 S.W.2d 481, 498 (Tex. Cr. App. 1995) (appellant's supplemental brief presented nothing for review).

12. See Tex. R. App. Pro. 34.5.

13. See id. Rule 34.6.

14. See id. Rule 39.1.

15. "It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done." Tex. Code Crim. Proc. art. 2.01.

16. Cf. Tex. R. App. Pro. 11.