“Texas” and Confessions of Error in the U.S. Supreme Court

Prosecutors have a duty to see justice done—not to obtain convictions. So if the prosecution, after carefully reviewing the law and evidence, concludes that there is no basis for a conviction, the prosecution should confess error and ask a court to grant relief from a criminal judgment. This bedrock feature of the criminal justice system is fundamental; innocent people should not be in jail. 

But there is another bedrock feature of the criminal justice system that also merits attention; sometimes, courts disagree with prosecutors’ confessions of error. When a court enters a judgment, a court generally must undo that judgment. The mere say-so of a prosecutor is not enough. Otherwise, prosecutors would have the equivalent of a pardon power, and one prosecutor could undo the work of prior prosecutors, jurors, and judges, all the while nullifying the judiciary’s power to issue binding judgments. Accordingly, even if a prosecutor has confessed error, judges still must determine whether, in fact, there is a lawful basis to provide relief. As the U.S. Supreme Court explained more than half a century ago: 

The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as to that of the enforcing officers. Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties. 

That rule dates to at least “the 1708 trial of Lord Griffin at the Court of Kings Bench,” where the court decreed that “confessing an error in law would not do: they must judge it to be an error; and their judgment would be precedent.” Of course, courts do not lightly reject prosecutors' views, but they are not bound by them. Courts instead may reject confessions of error.  

I mentioned this law because of cases in which “the State of Texas” has confessed error to the U.S. Supreme Court after the Texas Court of Criminal Appeals (CCA)—the State’s highest court for criminal matters—determined that no error warrants relief from judgment. Yet in these cases, “the State” is not represented by a statewide official, but rather by a district attorney from one of Texas’s 254 counties. What’s more, it is not always clear that the rest of Texas would agree.  

In recent years, several such cases have come to the Supreme Court. While I served as Solicitor General, for example, the State—represented by the District Attorney from Travis County, the home of Austin—confessed error in a case called Escobar v. Texas. Indeed, in Escobar, the DA confessed error twice, contending that questions about DNA evidence warranted a new trial in a case involving a truly horrific murder of a young mother. Prosecutors did so first in 2022, helping persuade the Supreme Court to vacate the CCA’s judgment and remand “for further consideration in light of the confession of error by Texas.” Upon remand, however, the CCA again concluded that the conviction should stand. Following a second petition to the Supreme Court, the Travis County DA again confessed error.  

During those second proceedings, the Texas Attorney General’s Office became involved. Under Texas law, county DAs generally represent the State in criminal matters, while the Attorney General represents the State in civil matters. Federal post-conviction litigation is civil in character, so the AG’s Office sometimes finds itself defending convictions on behalf of its client, the Texas Department of Criminal Justice (TDCJ), while local prosecutors are litigating those same convictions before the CCA. With respect to Escobar, the TDCJ represented by the AG’s Office filed an amicus brief offering the other side of the argument. After holding the case pending resolution of a similar matter out of Oklahoma in which the Attorney General himself confessed error, the Supreme Court denied Escobar’s petition with no recorded dissent, leaving his conviction in place.  

Early this week, the Supreme Court addressed two additional cases where “the State of Texas”—again, represented by county DAs—did not defend the CCA’s decisions, at least in part. In one, the Court vacated for the CCA to reconsider the case.  In the other, the Court rejected the petition, with three Justices dissenting.  

In both cases, the Supreme Court thus had sort through the dispute itself, without a full-throated defense of the CCA. (Sometimes, as with the Oklahoma case, the Court appoints an amicus to help.) The AG’s Office did not file an amicus brief in either case, presumably because the TDCJ was not a party and received no notice when the State—filing the response brief—decided not to defend the judgment. Notably, a DA’s office may confess error before the CCA but still defend the CCA’s decision if the DA concludes there is no federal basis to vacate the judgment.    

I want to be 100% clear: I have not investigated whether there were good grounds to confess error in those recent cases. Instead, my thoughts here are more universal. As a general procedural rule, if a DA is confessing error on behalf of Texas, that DA should provide timely notice to the AG’s Office. Texas law requires similar notice when the constitutionality of a Texas statute is called into question; the same sort of requirement should apply when a Texas criminal judgment is undefended before the CCA or the Supreme Court. Upon receiving notice, the AG’s Office could then seek time to assess the record and, if warranted, file a true opposition brief. Not only is the Attorney General an elected official for all of Texas, but he employs lawyers with a deep understanding of criminal law, many of whom have already been litigating the same convictions. Why allow one prosecutor to confess error on behalf of all Texans—thus requiring a court to independently assess what happened—without creating a process for judges to also hear from the statewide officer whose lawyers also may be intimately familiar with the case?    

Notably, the Pennsylvania Supreme Court has recently required such notice with respect to the District Attorney of Philadelphia.  The court emphasized that the office there “conceded relief although none was warranted based on the existing record, violated its duty of candor to the [] court, withheld material evidence from the court, opposed efforts by amici to gain access to this evidence, submitted a false stipulation of fact, misstated facts in its pleadings, failed to conduct a reasonable investigation, and opposed a required evidentiary hearing.” The court thus concluded that going forward, notice and opportunity to intervene should be given to the Pennsylvania Attorney General. What happened in Philadelphia requires a stern response, but, to be clear, what I am proposing is different. Even where there is no reason to believe a prosecutor has engaged in misconduct, it would be better for the system overall as a “good government” measure to have another set of eyes look at the evidence so the judiciary isn’t forced to try to do it itself.   

To be sure, I am not advocating for someone who will always argue in favor of upholding convictions. If the AG’s Office independently agrees with other prosecutors that there is an error to confess, it should say so. And even if the AG’s Office disagrees, the CCA or the Supreme Court could still decide to vacate a conviction. But given that courts may benefit from hearing from more voices, the Texas Attorney General should be invited to participate in any case in which Texas confesses error.  

Aaron L. Nielson is a senior fellow at the Civitas Institute and holds the Charles I. Francis Professorship in Law at the University of Texas at Austin School of Law.