GABALDON, IVAN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0149-23

THE STATE OF TEXAS

v.

IVAN GABALDON, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS
EL PASO COUNTY

SCHENCK, P.J., filed a concurring opinion.

OPINION

In this case, the trial court chose to remedy a finding of prosecutorial

vindictiveness by dismissing the indictment with prejudice. The majority holds that

doing so was an abuse of discretion, while Judge Finley’s dissent finds no other

adequate remedy. I write separately to ascertain a remedy between these two
GABALDON CONCURRENCE – 2

extremes, address the standard of review, and expand on what I see as available

remedies for a finding of vindictive or otherwise unconstitutional prosecution.

As detailed below, I believe the factual determination of prosecutorial

vindictiveness is best left to the trial court and should be reviewed for clear error.

The question of the permissible remedies is a critical one and antecedent to any

analysis of the exercise of discretion in selecting among them. The task of

identifying those remedies is primarily on this Court and, in my view, is in urgent

need of development to address the risk of prosecutorial abuse. While the trial courts

obviously share in this task, the decision of whether a remedy is potentially viable

would be reviewed de novo and should be addressed regardless. The selection

among remedies should then be reviewed for abuse of discretion.

I see no abuse in selecting some remedy here and disagree with the majority’s

finding of an abuse of discretion in the lower court’s selection of the only available

option this Court has identified to remedy the unconstitutional abuse at issue here.

That said, I also see dismissal at this stage 1 as extreme and inappropriate given the

circumstances, as it imposes the consequences of the prosecutor’s misconduct on an

innocent public and should be reserved for prosecutions that would not otherwise

have been brought but for a due process violation. Because I doubt the trial court

1
I share in Judge Finley’s thoughtful concerns with respect to timing. I would, however,
allow the trial court to address that question first and after being afforded an opportunity to decide
what, other than nothing, should be done as a result of the prosecutorial abuse.
GABALDON CONCURRENCE – 3

would have selected that option were another available, I believe we should make

clear that disqualification of the District Attorney is available as a remedy for a

constitutional violation by that office. While we have not identified this option

previously, I believe it is vital we do so now in view of developments in our

jurisprudence over the last several decades precluding other, structural forms of

constitutional oversight to check abuse of the prosecutorial function. To the extent

the majority opinion may be read to foreclose this option to the trial judge on remand,

I disagree.

I will address these points in turn.

DISCUSSION

I. THE STANDARD OF REVIEW FOR VINDICTIVE PROSECUTION
DETERMINATIONS
The majority evaluates both the trial court’s factual finding of prosecutorial

vindictiveness and its rulings under an abuse of discretion standard, affording almost

total deference to the trial court’s determination. Maj. Op. at 11–13. The State does

not challenge the trial court’s factual finding of vindictiveness. The majority,

however, appears to address the factual question of vindictiveness through the lens

of abuse of discretion. That standard is known to be “the most deferential standard

of review available with the exception of no review at all.” Martha S. Davis, A Basic

Guide to Standards of Judicial Review, 33 S.D. L. REV. 469, 480 (1988).
GABALDON CONCURRENCE – 4

The abuse of discretion standard has varying applicability stemming from the

trial court’s primary role in managing its docket and the movement of cases. The

standard’s early development began in the civil context, and its application slowly

expanded to a wider variety of issues, such as admission of expert testimony and

voir dire. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–42, 146 (1997) (citing Spring

Co. v. Edgar, 99 U.S. 645, 658 (1879)); Connors v. United States, 158 U.S. 408,

415–16 (1895). It also may play a proper role in contexts of mixed questions of law

and fact 2 where the trial judge’s decision required observation of witnesses and a

determination of their credibility. 3 I have no concerns with its application to docket

management, evidentiary rulings, and other matters that should generally defy

appellate micro-management after judgment. But the question of whether something

has happened that might trigger the need for the exercise of judicial judgment is a

distinct inquiry. I am not inclined, as a general matter, to license the trial courts to

self-declare the need for the exercise of their own discretion.

Thus, I do not subscribe to abuse of discretion as the proper standard for our

review of the factual determination of prosecutorial vindictiveness. Instead, I

believe the analysis should be two-fold: first, we should determine whether the

2
State v. Cortez, 543 S.W.3d 198, 203–04 (Tex. Crim. App. 2018).
3
Of course, regard for the trial court’s observation of witnesses is also accounted for in
other standards, like clear error.
GABALDON CONCURRENCE – 5

finding of vindictiveness was clearly erroneous; and second, whether the trial court

abused its discretion in ordering dismissal or any other remedy.

While we have neither clearly embraced clear error nor formally announced

it as the proper standard to govern the factual determination of vindictiveness, we

have signaled as much in Neal v. State, 150 S.W.3d 169, 174 n.15 (Tex. Crim. App.

2004) (citing federal clear error standard but avoiding resolution on waiver grounds).

Our courts of appeals have routinely relied on that declaration and deploy the clear

error standard in reviewing factual findings of vindictiveness. 4 Additionally, “the

majority of federal circuits that have addressed the standard of review for claims of

prosecutorial vindictiveness review the district court’s factual findings for clear error

and its legal rulings de novo.” Simms v. United States, 41 A.3d 482, 487 (D.C. 2012)

(collecting cases); United States v. Dvorin, 817 F.3d 438, 455 (5th Cir. 2016) (citing

United States v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008)); United States v.

Meyer, 810 F.2d 1242, 1245 (D.C. Cir.1987). 5

4
Our courts of appeals have applied the clear error standard in reliance on Neal. See Amaya
v. State, No. 08-11-00265-CR, 2013 WL 5593110, at *8 (Tex. App.—El Paso Oct. 9, 2013, no
pet.); Ex parte Legrand, 291 S.W.3d 31, 42 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d);
Guerra v. State, No. 13-04-328-CR, 2005 WL 2878071, at *2 (Tex. App.—Corpus Christi–
Edinburg Nov. 3, 2005, pet. ref’d); Ex parte Hilliard, No. 08-22-00179-CR, 2023 WL 4678675,
at *4 (Tex. App.—El Paso July 21, 2023, no pet.).
5
For purposes of evaluating a federal vindictiveness claim, it appears the United States
Supreme Court has not weighed in as of yet. Cf. Ornelas v. United States, 517 U.S. 690, 698-99
(1996) (while district court findings of probable cause and reasonable suspicion should ultimately
be reviewed de novo, findings of historical fact should be reviewed for clear error).
GABALDON CONCURRENCE – 6

I find these cases persuasive and see no reason to depart from their

interpretation of United States Supreme Court precedent, nor from our own earlier

Neal decision. Under the clearly erroneous standard, we would still give significant,

if not nearly complete deference to the trial court’s finding. Specifically, we would

affirm unless, after examining the entire record, we are left with the definite and firm

conviction that a mistake has been committed. Cooper v. Harris, 581 U.S. 285, 309

(2017); Alexander v. S.C. State Conference of the NAACP, 602 U.S. 1, 18 (2024).

Furthermore, neither the U.S. Supreme Court nor this Court have limited the

presumption of prosecutorial vindictiveness to post-conviction situations where a

defendant has exercised his right to an appeal and obtained a new trial.6 In all events,

dismissal for vindictiveness before trial should be available in extreme cases where

the prosecution would not have been brought but for the abuse. See, e.g., State v.

Hill, 558 S.W.3d 280, 288 (Tex. App.—Dallas 2018, no pet.) (Schenck, J.,

concurring) (three justices agree on vindictiveness to affirm pretrial dismissal with

prejudice; two also find due process disqualification). The power to prosecute, no

less than the power to tax, 7 can just as obviously operate as the power to destroy.

6
See, e.g., United States v. LaDeau, 734 F.3d 561, 567 (6th Cir. 2013) (“[It] is incorrect to
suggest that Goodwin categorically bars a district court from finding that the requisite ‘stake’ could
arise in the pretrial setting.”); United States v. Barner, 441 F.3d 1310, 1317–18 (11th Cir. 2006)
(“[N]othing in the language or rationale of Goodwin rules out the possibility that a case could
present additional factors that would make it appropriate to use the presumption in a pretrial
setting.”); Simms, 41 A.3d at 488 (“[A] presumption of vindictiveness is available pretrial.”).
7
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819).
GABALDON CONCURRENCE – 7

Relief from an abusive prosecution after the fact may not be relief at all. While the

facts of this case do not warrant outright dismissal, they do evidence vindictiveness

beyond the reach of clear error attack, proving the point that some remedy and

oversight is necessary.

The prosecutor here faced a speedy trial invocation, sought a continuance, and

lost. His response was to dismiss the existing case, reindict, and add pursuit of the

death penalty. The trial court was well within its bounds to find this prosecutor’s

action vindictive of this defendant’s speedy trial assertion. Yet the prosecutor’s

action was even more than that; it reflected a contempt of the defendant’s place in a

constitutional order and for the court itself. Forcing the defendant and the judge to

submit to a trial in anticipation of later appellate relief ignores the nature of the

injury, undermines the authority of the court, and, most importantly, serves as little

restraint on an abuse of power. Where, as here, the fact of abusive prosecution is

beyond doubt, a trial judge’s decision to impose a remedy sufficient to correct the

abuse and send a clear message sufficient to deter repetition from the same office is

not just within the trial judge’s discretion, it’s essential to maintaining constitutional

order. 8

8
The happenstance that a district attorney or the assistant prosecutor most responsible for
the abuse is no longer with the offending office does not control that exercise of discretion. If the
local district judge believes that a cannon shot through the hallway is necessary to communicate
to the current and future generation of local prosecutors that abuses will not be tolerated, I would
defer to that judgment. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) (stressing
GABALDON CONCURRENCE – 8

II. DECLARING THE REMEDY FOR VINDICTIVE PROSECUTION

The majority’s opinion concludes that the trial court abused its discretion in

fashioning a remedy for its vindictiveness finding. I agree with the majority that

dismissing a case with prejudice is a “drastic” measure, but I do not think the trial

court necessarily exceeded its authority in imposing that remedy if it was the only

remedy available. Maj. Op. at 28. However, I believe others were and should be

available.

In its analysis, the Court has forgone what I think to be a necessary discussion

of the due process right and this State’s Constitution, as well as the role of the

courts—including and especially this Court’s role—in developing that law. The

remedy question is, at least initially, purely legal and one this Court is obliged to

develop. See Owens v. State, No. PD-0075-24, 2025 WL 1587690, at *11 n.6 (Tex.

Crim. App. June 4, 2025) (Parker, J., concurring and dissenting, joined by Schenck,

P.J.). As detailed below, I would develop that legal question before reversing the

trial court and allow it to first exercise its discretion in selecting among the available

remedies before reversing. As it stands, it appears we have come to two extreme

deterrent objective of sanctions for civil misconduct). “A [Texas] trial court has inherent power
to sanction bad faith conduct during the course of litigation that interferes with administration of
justice or the preservation of the court’s dignity and integrity.” Onwuteaka v. Gill, 908 S.W.2d
276, 280 (Tex. App.—Houston [1st Dist.] 1995, no writ). In my view, that power does not obtain
only in civil proceedings.
GABALDON CONCURRENCE – 9

and different conclusions in this case. Neither is mandatory or proper in my view.9

Instead, I would make clear that a district court faced with prosecutorial abuse may

fashion another remedy, including removal of the district attorney from the case and

substitution of either the Attorney General or a neighboring district attorney, or any

other means he or she believes is necessary to maintain the integrity of the judiciary.

A. Abuse of the Prosecutorial Office Affects the Entire Judicial Process

The prosecutorial vindictiveness claim is rooted in due process and in this

State’s Constitution. The Due Process Clause prohibits a prosecutor from punishing

a defendant for exercising his lawful constitutional or statutory rights. Bordenkircher

v. Hayes, 434 U.S. 357, 363 (1978) (“To punish a person because he has done what

the law plainly allows him to do is a due process violation of the most basic sort.”);

United States v. Goodwin, 457 U.S. 368, 372 (1982) (“[W]hile an individual

certainly may be penalized for violating the law, he just as certainly may not be

punished for exercising a protected statutory or constitutional right.”).

9
As I will discuss, the first question is whether any other option is available. I would
answer that legal question “yes” and believe it is emphatically our duty to articulate such options.
While I might be inclined to select that third option were I a district court, that is a decision best
left to the trial court which is closest to the facts and actors at issue and should be reviewable only
for abuse thereafter.
GABALDON CONCURRENCE – 10

B. A Dismissal Remedy for Vindictiveness is Necessary, but Should Not
Be Lightly Imposed on the Public or the Defendant Who Suffers the
Abuse

The majority frowns on dismissal with prejudice as a remedy here. I share

that concern. I also agree that a trial court’s actions must be supported in one of four

ways: by the Constitution, statute, common law, or where the power to act arises

from its inherent or implied power. State v. Johnson, 821 S.W.2d 609, 612 (Tex.

Crim. App. 1991). To narrow our focus, we can start by ruling out the two former

circumstances; Texas has no specific constitutional provision or statute authorizing

the trial court to dismiss a case with prejudice without the prosecution’s consent or

on its own motion.

The Texas Legislature once permitted dismissal with prejudice under the

Speedy Trial Act, wherein dismissal for violation of a defendant’s Sixth Amendment

speedy trial right was automatically with prejudice, which was codified in Article

28.061 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PRO. ANN. art.

28.061. However, this Court held that provision unconstitutional as a violation of

separation of powers within the Texas Constitution. Ex parte Young, 213 S.W.3d

327, 331–32 (Tex. Crim. App. 2006). Naturally, our common law likewise provides

no such authority. Johnson, 821 S.W.2d at 613. This and other like holdings

(discussed further below) would appear to leave little room for any statutory basis

for constraining the abuse of the power to prosecute. Still, this Court has recognized
GABALDON CONCURRENCE – 11

its authority (and hence obligation) to uphold the Constitution’s substantive speedy

trial command. Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002).

This would appear to leave the question of whether a trial court’s authority to

dismiss with prejudice arises from its inherent or implied power, which the majority

answers in the negative. Maj. Op. at 28-29. I see that question somewhat differently

at least insofar as inherent power is intertwined with this Court’s general

constitutional mandate of administration or to various specific constitutional

mandates in the Bill of Rights. See TEX. CONST. art. V, § 21 (mandating open courts

and remedy for injuries).

I concede the Constitution does not speak—directly at least—to virtually all

the potential abuses that may occur in our courts and before our grand juries beyond

demanding that its citizens be afforded “due course of law.” It instead created a bi-

furcated appellate system with one court (this one) responsible for the management

of all criminal law matters, including what course of law is “due” and what remedy

(if any) should follow from departure. That requires stewardship and oversight of

the inferior officers and other actors within the judicial branch playing a role in those

matters. Accountability, like charity, starts at home.

A hallmark of our rule-based, republican form of government is that “[e]very

right, when withheld, must have a remedy.” Marbury v. Madison, 5 U.S. (1 Cranch)

137, 147 (1803). As these problems will come in a myriad of forms and in individual
GABALDON CONCURRENCE – 12

cases, we cannot assume a passive posture and await guidance from elsewhere,

particularly where we have foreclosed it under our separation of powers decisions.

As I see it, the judiciary possesses the primary check on the enforcement of the rule

of law within the judicial department itself through the exercise of judicial power.

See Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 124 (2015) (Thomas, J.,

concurring). This check exists to ensure that the government generally respects

constitutional values, integral to our role in maintaining the rule of law. See Richard

H. Fallon Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional

Remedies, 104 HARV. L. REV. 1731, 1788 (June 1991). To sit on our hands while

the office of prosecutor makes its own law or functions apart from the constitutional

order would be a mistake.

When determining which remedy may be proper to redress a violation of a

constitutional right, we should consider the broader remedial principals from our

Constitution. Daniel J. Meltzer, Congress, Courts, and Constitutional Remedies, 86

GEO. L.J. 2537, 2538 (July 1998). It is not a simple inquiry, and it requires us to

assess and understand our constitution’s history, text, and structure. Id.

Constitutional remedies serve two basic functions: first, to redress individual

violations; and second, to reinforce values underlying the separation of powers and

the rule of law. Richard H. Fallon Jr. & Daniel J. Meltzer, New Law, Non-
GABALDON CONCURRENCE – 13

Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1787 (June

1991).

III.. REMEDIES CAN ONLY COME FROM WITHIN THE JUDICIARY
AT THIS POINT
The majority seeks to ascertain the amount of authority the Legislature has

conferred on the judiciary to police vindicative or abusive prosecutions. Maj. Op. at

29–30. Though well-reasoned in this regard, to me the valuation is irrelevant and

underscores the underlying, structural constitutional problem. A disagreement

between the surgeon and the anesthetist over who has less authority in the operating

room still leaves the patient to die on the table. As detailed below, we have already

effectively kicked the anesthetist in the shins and left little room for anyone but us

to come up with a remedy more meaningful than the one employed here.

Meanwhile, the problem of abusive prosecutions (and arrests) persists across

the country, making one wonder how it might ever be checked in Texas. See, e.g.,

People by James v. Trump, No. 2023-04925, 2025 WL 2412681, at *108–12 (N.Y.

App. Div. Aug. 21, 2025) (Friedman, J., concurring in part and dissenting in part)

(stressing need to judicially correct abusive political litigation brought by state

attorney general).10 While we have dithered over the proper source of authority to

10
Had the same case been brought in Texas, I wonder what authority my colleagues
imagine we would have to correct it—particularly if we are obliged to await legislative invitation
that we would ultimately say is beyond the authority of the Legislature in the first place?
GABALDON CONCURRENCE – 14

oversee and correct abuse of the authority to initiate criminal proceedings and

whether or to what extent the Legislature can constrain the exercise of that power,

the U.S. Supreme Court and other courts have acted. E.g., id.; see also Gonzales v.

Trevino, 602 U.S. 653, 655 (2024) (Texas official arrested on charges, even if

supported by probable cause of violation, but whose pursuit could not be explained

but for constitutional vindictiveness finds a constitutional remedy in federal court).11

I view our “duties and responsibilities” as including the obligation to oversee

unconstitutional abuses of our constituents via misuse of the courts by inferior

officers of the judiciary. This Court has often held that “a trial court does not have

the power to dismiss a case unless the prosecutor so requests.” Ex parte Seidel, 39

S.W.3d 221, 223 (Tex. Crim. App. 2001). That may be fine as a general proposition,

but these decisions are founded on the underlying notion that the “inherent judicial

power of a court is not derived from legislative grant or specific constitutional

provision, but from the very fact that the court has been created and charged by the

constitution with certain duties and responsibilities.” Eichelberger, 582 S.W.2d at

Regardless of which side of the aisle the abuse emanates from, the judiciary’s obligation and
authority to police it seems obvious.
11
The federal constitutional standard for “vindictive,” “retaliatory,” or “malicious”
prosecution and arrest is the same. See Nieves v. Bartlett, 587 U.S. 391, 401, 405, 407 (2019).
Why our citizens would have to take a case to federal court to seek redress in either instance is
what concerns me. Whether the case is brought for the sole apparent purpose of marketing the
indictment to a contributor, Hill, retaliation for exercise of constitutional right as here, or a naked
political intimidation effort, as in the Gonzales and James matters, the trial judge has the authority
to end it.
GABALDON CONCURRENCE – 15

398 (emphasis added). Given that we have largely eliminated other avenues for

constitutional oversight of prosecutorial misconduct, I believe the Constitution

requires us to act in cases like the one before us today.

We have recognized this oversight role in the past, if not with respect to

dismissal. When a prosecutor maintains a conflict of interest rising to the level of a

due process violation, this Court has already held a trial court may disqualify the

conflicted prosecutor should he refuse to step down. State ex rel. Hill v. Pirtle, 887

S.W.2d 921, 927 (Tex. Crim. App. 1994). More than ten years later in Landers, this

Court explained a due-process violation may be found if the defendant has

established “actual prejudice.”12 In her concurrence, Presiding Judge Keller

analogized that situation to one where “the State assures an accused that exercising

a certain right will carry no penalty.” Landers v. State, 256 S.W.3d 295, 311 (Tex.

Crim. App. 2008) (Keller, P.J., concurring). That same due process interest was

applied by the majority in the Dallas Court of Appeals to mandate dismissal with

prejudice where the prosecutorial abuse resulted in the initiation of a proceeding that

would not otherwise have been initiated. Hill, 558 S.W.3d at 288.

12
This case obviously does not present the question of whether a prosecutor might ever be
permitted to initiate and pursue charges against his former client, as the Court in Landers
considered, though Landers and the case before us both pose questions of due process violations.
GABALDON CONCURRENCE – 16

A. The Office of Prosecutor is Not a Fourth Department of Government
Immune From any Form of Check or Balance

It is a testament to the skill and resolve of our county and district attorneys

that we have confronted questions like this so rarely. Nevertheless, these questions

do arise and will continue to do so with increasing frequency if we do not identify

some effective form of oversight from abuse, including dismissal, disqualification,

and perhaps other remedies, if necessary to assure adherence to our constitutional

form of government from all who operate within it. I would therefore overrule Seidel

and its progeny to the extent those decisions operate on a contrary premise.

Whether one calls it inherent or implied power—or simply a recognition of

the escalating responsibility to administer the judicial department 13—some effectual

remedy is necessary to check prosecutorial abuse, however rare it might be. TEX.

CONST. art. II, § 1. To that end, it is important to consider how this decision plays

into the unique structure of the Texas prosecutor and the existing precedent of this

Court. Given development in this Court’s jurisprudence in recent decades, that

mandate takes on additional significance, requiring the court to effectuate these

remedies where necessary, as that jurisprudence drives the other departments of

government from participating in the discussion and formulating a solution. E.g.,

Young, 213 S.W.3d at 331–32.

13
The more our decisions drive others from the field, the more critical our oversight
becomes.
GABALDON CONCURRENCE – 17

Texas is unique in that it “establishes the offices of County and District

Attorneys” under the “Judicial” department of government. TEX. CONST. art. V, §

21. Our Constitution provides that those officers “shall represent the State in all

cases in the District and inferior courts in their respective counties . . . ” and we have

read this provision both to reach to criminal matters and to be exclusive. Id.; see

State v. Stephens, 663 S.W.3d 45, 50 (Tex. Crim. App. 2021); Meshell v. State, 739

S.W.2d 246, 254 (Tex. Crim. App. 1987); Young, 213 S.W.3d at 331–32; Seidel, 39

S.W.3d at 223. These decisions carry serious implications. While nominally rooted

in “separation of powers” concerns, they have effectively concentrated all power to

initiate and preside over criminal cases in the judicial department and, in turn, this

Court. This brings up two concerns.

First, I believe this was a mistake, however well-intentioned, and should be

corrected to avoid what I see as a misdirection of power (and responsibility, whether

we acknowledge it or not) into the judiciary and this Court. Our Stephens decision

was well-written and reasoned within the limits of its own field of view. But it failed,

in my view, to ask the controlling, first question in any separation of powers question

raised by our Constitution: where did the framers place this power when they drafted

Article II? In other words, if the power to investigate and initiate a criminal matter

would have been understood to be executive in nature, all, not some, of that power

would have resided exclusively in that department of government, except as
GABALDON CONCURRENCE – 18

specifically otherwise permitted by the remaining constitutional text. Having

skipped that question, the Court in Stephens focused on Article V’s creation of the

offices of county and district attorney, noting that it is the only provision authorizing

the filing of cases in lower courts.14

Seizing on the fact that Article V authorized district and county attorneys to

represent the state in the inferior courts, 15 we then treated that authorization as

exclusive, driving the Legislature and the Executive departments from the scene and,

hence, excluding any role for oversight or assignment of the power to the executive

in any case, 16 regardless of its subject matter or implications. We never asked if this

grant of authority was, instead, necessary to exercise to permit any portion of the

authority otherwise assigned to the executive by direct operation of Article II. 17

14
Never mind that the section makes no reference to criminal law, indictments or the like,
the first question is why is the power placed and acknowledged there?
15
I recognize that the Court also pointed to the presence of the word “shall” in the
constitutional text concerning county and district attorneys’ representation in cases filed in their
respective courts. That term connotes obligation more than exclusivity. Anyone who grew up in
a household with siblings can understand this concept—our mother’s words “you shall take out
the trash” directed toward one sibling neither prevented nor foreclosed the possibility of any other
being directed to the same task at any point in the future.
16
Removal from office is a power this Court has not yet touched. It is, in all events, distinct
from the right (if any) of our citizens to a remedy in any given case.
17
Meanwhile, having found the language in Article V, Section 21 providing that county
and district attorneys “shall” represent the state in the lower courts to be so comprehensive and
mandatory as to preclude legislative recognition of a like role for the Attorney General—despite
the text of Article IV so suggesting—every local county and district attorney is somewhere given
the ability—despite the “shall” directive—to decline to represent the state and instead to confer
that power on the Attorney General. “Shall,” it would seem, becomes “may” or “may not,” and
GABALDON CONCURRENCE – 19

The U.S. Supreme Court has repeatedly characterized the power to

“investigate and prosecute crimes” to be “a quintessentially executive function”

since before the time of enactment of our Constitution in 1876. Trump v. United

States, 603 U.S. 593, 620 (2024); Morrison v. Olson, 487 U.S. 654, 706 (1988)

(Scalia, J., dissenting); Heckler v. Chaney, 470 U. S. 821, 832 (1985); Buckley v.

Valeo, 424 U. S. 1, 138 (1976); United States v. Nixon, 418 U. S. 683, 693 (1974);

The Confiscation Cases, 74 U.S. 454, 457 (1869). Meanwhile, our plain

constitutional text makes clear that Texas county and district attorneys, though

placed in Article V, are not exercising a judicial power. TEX. CONST. art. V, § 1

(listing those on whom the judicial power is vested and omitting county and district

attorneys). That being the case, the power to prosecute would have been assigned

directly to the executive branch by the plain language of Article II, with any

particular assignment (or reservation) of that power left to the Legislature as

indicated by the text of Article IV, Section 22 conferring on the Legislature the

authority to add to the Attorney General’s executive function “such duties as may

be required.”18

local attorneys are empowered to expand the authority of the Attorney General to that even the
Legislature is denied by decision of this Court, if not Articles II and IV.
18
Article II’s text is plain and self-effectuating:
Separation of powers of government among three departments
GABALDON CONCURRENCE – 20

The provision in Article V, Section 21 authorizing and mandating district and

county attorneys to represent the state in the inferior courts was thus essential

because Article II would have otherwise precluded it by direct operation of the last

sentence of its text: “no person, or collection of persons, being of one of those

departments, shall exercise any power, properly attached to either of the others,

except in the instances herein expressly permitted.” TEX. CONST. art. II, § 1

(emphasis added).

Second, this oversight and this result, in my view, ignored general separation

of power norms and, ironically, placed all authority for oversight of criminal

prosecutions in a single department of government.19 While the Constitution’s text

explicitly invited legislative enlargement of the Office of the Attorney General

through which the framers provided a functional balance of authority among the

three departments, we rejected its application to the prosecutorial function over

Judge Yeary’s dissent. Thus, we appear to have foreclosed the prospect of legislative

The powers of the Government of the State of Texas shall be divided into three
distinct departments, each of which shall be confided to a separate body of
magistracy, to wit: those which are Legislative to one, those which are Executive
to another, and those which are Judicial to another; and no person, or collection
of persons, being of one of these departments, shall exercise any power properly
attached to either of the others, except in the instances herein expressly permitted.
TEX. CONST. art. II, § 1 (emphasis added).
19
The concentration of the authority to initiate and preside over a criminal proceeding was
the hallmark of an English system set up in the Star Chamber Act of 1487. It was eliminated by
the Habeas Corpus Act in 1640 and precluded from revival in this country in Article IV, § 4 of the
U.S. Constitution.
GABALDON CONCURRENCE – 21

remediation of prosecutorial abuse, making oversight by this Court the only prospect

of effectuating a remedy or assuring due course of law insofar as the use of the

prosecutorial power is concerned. Unless and until we revisit our separation of

powers decisions like Young and Stephens, we have left ourselves with no choice

but to oversee the yielding of the power to prosecute as against abuses that would

have the effect of undermining public confidence in the fairness of its courts.20

If this state is not to be subjected to the abuses of the prosecutorial function

that has been seen elsewhere in recent years, it is only this Court that can remedy it.

B. Disqualifying the District or County Attorney Must Be an Option

The trial court in this case chose to remedy its prosecutorial vindictiveness

finding by dismissing the indictment with prejudice. I believe that decision must be

available, if exercised only in rare circumstances, including cases of vindictiveness.

The majority holds that in doing so here the trial court abused its discretion,21 while

Judge Finley’s dissent finds that remedy appropriate through the operation of the

20
The suggestion that courts might lack the power to hold rogue prosecutors accountable
directly conflicts with the constitutionally-implied powers the courts must possess, at least in the
civil context. See Webster v. Comm’n for Lawyer Discipline, 704 S.W.3d 478, 489–90 (Tex.
2024). Given the gravity of circumstances involved in criminal proceedings and the bifurcated
nature of the Texas high courts, I doubt this implied power could simply disappear because this
Court has not yet chosen to employ it. Nothing in Article V of our Constitution supports a contrary
rule, Stephens notwithstanding.
21
While the standard of review for a trial court’s finding of prosecutorial vindictiveness is
clear error, ante at 3–7, we review its imposition of a remedy for an abuse of discretion. See State
v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 1998); State v. Mungia, 119 S.W.3d 814, 817
(Tex. Crim. App. 2003).
GABALDON CONCURRENCE – 22

Constitution’s speedy trial assurance. I disagree with either holding at this stage.

Instead, I would first explicitly recognize the judicial power of oversight over the

Office of the District Attorney and recognize the trial court’s authority to disqualify

that office as a remedy in a case22 like this. 23 This would preserve the right to a

merits-based resolution of an otherwise viable prosecution. I would generally

reserve the remedy of dismissal with prejudice to circumstances where the

prosecution would not have been initiated but for a due process abuse or where

continuation of it is similarly barred. State v. Hill, 558 S.W.3d 280, 288 (Tex.

App.—Dallas 2018, no pet.).

While I share Judge Finley’s speedy trial concerns, I believe those concerns

should first be addressed by the trial court.24 To that end, I would first remand this

case to permit that court to exercise its superior judgment over the available options

recognizing the rights and interests of public in seeing its criminal laws enforced,

22
This power would include the right to direct the case to an adjoining county or district
attorney or to the Attorney General. I recognize that our Stephens decision (wrongly in my view)
precluded the Legislature from exercising this authority when it does not have any logical
application within the judicial department itself. Indeed, a contrary conclusion would render the
District Attorney’s Office a fourth branch of government immune from any constitutional
correction at all.
23
I appreciate the majority’s concern for the limited authority (purportedly) conferred on
us by the Legislature to oversee the conduct of our District Attorneys in the first place. But, if we
believe—as we have repeatedly held—that the Legislature lacks constitutional authority to
interfere with the operations of the Office of the District Attorney because it sits with us in the
judicial branch, what authority would the Legislature have to confer and why would we await its
exercise in any case?
GABALDON CONCURRENCE – 23

the defendant to be free from abusive prosecution, and the government in promoting

confidence in its actions and oversight of its inferior officers.

CONCLUSION

At a minimum, before holding that the trial court abused his discretion, I

would remand for consideration of other possible remedies, including

disqualification of the District Attorney’s Office, and defer to the trial court’s

discretion so long as the chosen remedy arguably lies within it.

Therefore, I concur in the majority’s decision to reverse the ruling from the

court of appeals, modify the trial court’s dismissal to one without prejudice, and

allow for reindictment of the offense or any offense qualifying as lesser included.

However, I believe our Court is empowered to exercise its oversight to prevent the

obstruction of justice, and thus ought to make clear that the trial court’s options here

are not restrained to a simple dismissal “with” or “without” prejudice.

Filed: September 3, 2025

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