           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS

                                      NO. AP-75,510



                    EX PARTE JOHN AVALOS ALBA, Applicant



              ON APPLICATION FOR WRIT OF HABEAS CORPUS
                        FROM COLLIN COUNTY

       P RICE, J., filed a dissenting opinion.


                                DISSENTING OPINION

       Eight months ago, the momentum of the death machine in Texas propelled us to an

unseemly execution. On the same day that the United States Supreme Court agreed to

examine the constitutionality of the Kentucky protocol for lethal injection,1 Michael Richard

died on the gurney before the mechanism could grind to a halt. The Supreme Court has since

spoken, and a plurality has provided us with a standard for measuring the constitutionality




       1

       Baze v. Rees, 128 S.Ct. 34, amended 128 S.Ct. 372 (2007).
                                                                                             Alba — 2


of our own execution protocol.2 The question for our consideration is whether our own

lethal-injection protocol, particularly the protocol for assuring that the first anesthetic drug

is properly administered, is “substantially similar” to that in Kentucky which the plurality

upheld.3 Today, a plurality of this Court dismisses two habeas corpus applications raising

such a claim,4 holding that the claim is not cognizable under Article 11.071of the Texas Code

        2

         In Baze v. Rees, __ U.S. __, 128 S.Ct. 1520 (2008), the plurality articulated a standard for
deciding whether a particular method of execution violates the Eighth Amendment prohibition
against cruel and unusual punishments in light of the availability of alternatives that are arguably
more humane. It will not suffice to establish such a claim, the Baze plurality reasoned, merely to
show that “a slightly or marginally safer alternative” exists to the current execution regime. 128
S.Ct. at 1531.

                Instead, the proffered alternative must effectively address a substantial risk
        of serious harm. * * * To qualify, the alternative procedure must be feasible, readily
        implemented, and in fact significantly reduce a substantial risk of severe pain. If a
        State refuses to adopt such an alternative in the face of these documented advantages,
        without a legitimate penological justification for adhering to its current method of
        execution, then a State’s refusal to change its method can be viewed as “cruel and
        unusual” under the Eighth Amendment.

Id. At 1532. Measuring Kentucky’s lethal-injection protocol against this standard, the Baze plurality
concluded that it passed Eighth Amendment muster, essentially because the first of the three drugs
administered was conceded to be sufficient to anaesthetize the condemned prior to administration
of the other two drugs, and Kentucky’s safeguards for assuring that the first drug was properly
administered, while not necessarily optimal, were deemed adequate. Id. at 1532-38. While Texas’s
lethal-injection protocol, from what I know of it, utilizes the same three drugs, we have yet to litigate
in Texas whether the safeguards in place (whatever they are) for assuring proper administration of
the first, anesthetizing drug are at least as comprehensive as Kentucky’s.
        3

        Id. at 1537.
        4

        Ex parte Alba, __ S.W.3d __ (Tex. Crim. App., No. AP-75,510, delivered June 11, 2008);
Ex parte Chi, __ S.W.3d __ (Tex. Crim. App., Nos. AP-75,930 & AP-75,931, delivered June 11,
2008).
                                                                                    Alba — 3


of Criminal Procedure, our capital habeas corpus statute. 5 In my view, the claim falls

comfortably within the ambit of the statute. Nevertheless, the Court insists on withholding

the rudiments of due process and due course of law in its equally unseemly haste to crank the

machine back up. I cannot go along with this.

                     COGNIZABILITY UNDER ARTICLE 11.071

       I have argued in the past that a challenge to our lethal-injection protocol ought to be

entertained in a subsequent application for writ of habeas corpus under Section 5 of Article

11.071.6 I have also dissented to the Court’s unwillingness in the past even to consider

“whether a challenge to the lethal-injection protocol actually constitutes a post-conviction

application for writ of habeas corpus at all, under Article 11.071, since it may not constitute

a challenge to ‘a judgment imposing a penalty of death.’” 7 Today the Court finally reaches

the question of cognizability of such a claim and concludes that it is not cognizable. I

disagree.

       “The writ of habeas corpus is a procedural device for subjecting executive, judicial,




       5

       TEX . CODE CRIM . PROC. art. 11.071.
       6

       TEX . CODE CRIM . PROC. art. 11.071, § 5. See Ex parte Hopkins, 160 S.W.3d 9 (Tex. Crim.
App. 2004) (Price, J., dissenting to denial of stay of execution).
       7

         Ex parte O’Brien, 190 S.W.3d 677, 684 (Tex. Crim. App. 2006) (Price, J., dissenting to
lifting of stay of execution), citing Ex parte Kerr, 64 S.W.3d 414, 418 (Tex. Crim. App. 2004).
                                                                                          Alba — 4


or private restraints on liberty to judicial scrutiny.” 8 Even a death-row inmate retains certain

residual—albeit necessarily limited, but nevertheless constitutionally protected—liberty

interests.9 Among those is the interest in not having the executive branch of government, in

the form of the Texas Department of Criminal Justice, Correctional Institutions Division,

which is tasked with carrying out his lawful execution, do so in a manner that would

constitute “cruel and unusual punishment[ ]” as prohibited by the Eighth Amendment to the

United States Constitution,10 or “cruel or unusual punishment” as prohibited by Article I, §

13 of the Texas Constitution.11 Surely we would not sit idly by and allow the applicant to be

drawn and quartered, if that were the method that the Director of TDCJ-CID [the Director]

chose to carry out his execution, since such a method would unquestionably constitute cruel




       8

        Peyton v. Rowe, 391 U.S. 54, 58 (1968).
       9

         Ex parte Patterson, 740 S.W.2d 766, 770-73 (Tex. Crim. App. 1987). See also Sandin v.
Conner, 515 U.S. 472, 485 (1995) (“Admittedly, prisoners do not shed all constitutional rights at the
prison gate, but lawful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations underlying our penal system.”)
(internal citations and quotations omitted); Farmer v. Brennan, 511 U.S. 825, 832 (1994) (“The
Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones[.]”)
(internal citation and quotation omitted).
       10

         U.S.CONST . amend. VIII. In Baze v. Rees, supra, S.Ct. at 1533, the plurality acknowledged
that, “failing a proper dose of sodium thiopental that would render the prisoner unconscious, there
is a substantial, constitutionally unacceptable risk of suffocation from the administration of
pancuronium bromide and pain from the injection of potassium chloride.”
       11

        TEX . CONST . art. I, § 13.
                                                                                             Alba — 5


and unusual punishment.12 Yet today the Court declares that we are powerless to invoke our

habeas corpus authority to halt such an unconstitutional implementation of an otherwise

lawful warrant of execution because the method of execution, unconstitutional though it may

be, does not effect the “fact or the length of confinement.” 13 I find this holding intolerable.14

        12

         In re Kemmler, 136 U.S. 436, 446 (1890) (“if the punishment prescribed for an offense
against the laws of the State were manifestly cruel and unusual, as burning at the stake, crucifixion,
breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be
within the constitutional prohibition.”). Such forms of “superadded” execution unquestionably
violate the Eighth Amendment. Baze v. Rees, supra, S.Ct. at 1556-59 (Thomas, J., concurring).
        13

        Ex parte Alba, plurality opinion, at 4.
        14

        Should the Director choose to carry out an execution in a manner that patently violates the
Eighth Amendment or Article I, § 13, such as those mentioned in Kemmler, supra, he would likely
be subject to the writ of mandamus or prohibition. But with new technology comes new methods,
such as electrocution, lethal gas, or lethal injection, and it will not be so obvious whether these new
methods unduly prolong the execution or inflict reasonably avoidable pain. New methods are not
susceptible to relief in mandamus or prohibition proceedings unless and until they are definitively
declared unconstitutional. For this reason, I agree with the plurality in Chi that the applicant’s
application for writ of prohibition should be denied.

         (I disagree, however, that the reason it should be denied is that his “Eighth Amendment claim
has no merit[.]” Ex parte Chi, plurality opinion at 5. I do not know whether his claim has merit or
not, and neither can the plurality without first litigating it. The Court declares that our protocol for
lethal injection is “materially indistinguishable” from Kentucky’s, citing Chi’s own application for
writ of prohibition. Id., at 2-3 & n.2. This is a disingenuous reading of Chi’s pre-Baze pleading.
In that pleading, filed at the time of his impending execution, Chi alleged that the Texas lethal
injection protocol is “materially indistinguishable” from that which the Supreme Court had just
agreed to review. The Court now treats this statement as a kind of post-Baze concession that the
particular Texas protocol for administering the first anesthetic drug is “substantially similar” to the
one approved by the Supreme Court. But that was not the applicant’s assertion at all! The applicant
claimed that the overall lethal injection protocols were “materially indistinguishable.” One can
hardly blame him for making such a general claim at the time. He simply meant that he should not
be executed so long as the overall three-drug protocol was under Supreme Court scrutiny. The Court
grievously errs to interpret the applicant’s initial pleading in this way, and then, on the basis of that
misinterpretation, to simply declare that his Eighth Amendment claim is “has no merit.”)
                                                                                               Alba — 6


        A death-row inmate does not serve a specific length of sentence; he is confined until

he is either executed, commuted, or exonerated. It makes little sense in this context to

analyze habeas corpus cognizability in terms of the “fact or length” of confinement. The

convicted capital murderer who has been legitimately sentenced to death has no liberty

interest in the sense that he can ever expect to be free from confinement, so long as he lives.

Indeed, he does not even retain a “life” interest that is sufficient to overcome the State’s

legitimate interest in extinguishing it, consonant with due process. The one substantive

constitutional right he unquestionably retains, however, is the right, when the time comes,

to be executed in a humane manner. I cannot accept that the Great Writ should not be an

available remedy for the applicant to raise an Eighth Amendment challenge to the manner

of his execution on the ground that it does not impact the “fact or length” of his confinement,

which is incidental, but only the manner of his execution.

        Article 11.071 of the Code of Criminal Procedure “establishes the procedures for an

application for a writ of habeas corpus in which the applicant seeks relief from a judgment

imposing a penalty of death.” 15 If the Director’s purported authority for subjecting a death-



        But a death-row inmate should still have some extraordinary avenue to test the constitutional
validity of a novel method of execution. Because he retains a residual liberty interest in not being
executed in a manner that violates the Eighth Amendment or Article 1, § 13, the writ of habeas
corpus ought to be made available to him. Any other holding, in my view, would suspend the writ,
in violation of Article I, § 12. TEX . CONST . art. I, § 12 (“The writ of habeas corpus is a writ of right,
and shall never be suspended.”); TEX . CODE CRIM . PROC. art. 1.08 (same).
        15

        TEX . CODE CRIM . PROC. art. 11.071, § 1.
                                                                                           Alba — 7


row inmate to a lingering and torturous death is the warrant of execution, which in turn is

authorized by the mandate of this Court following affirmance of a trial court’s judgment

imposing the death penalty, then any “relief” the inmate seeks on account of the obvious

Eighth Amendment violation would be relief from that judgment. It may not constitute

absolute relief in the sense that it would absolve the inmate from imposition of the ultimate

penalty of death. But it would constitute relief from the unlawful implementation of an

otherwise lawful penalty and release the inmate from the incremental encroachment upon his

liberty interest in not being put to death in an inhumane manner. A valid judgment and

sentence of death authorizes an execution, but it does not (and could not under any

circumstances) authorize a cruel and unusual execution.16 For this reason I would hold that

the applicant’s claim is cognizable under Article 11.071.

       For the proposition that to be cognizable a post-conviction habeas claim must




       16

         By comparison, suppose an inmate were unlawfully confined beyond the term of punishment
imposed by the lawful judgment authorizing his incarceration. Suppose further that the reason for
his unlawful continued confinement was that the Director had miscalculated the amount of time he
had served. Would we say that a habeas corpus application filed by this inmate to secure his release
was not available to him because his continued confinement, although unlawful, was no longer due
to the original judgment, but to the Director’s mistake, and that he therefore was not seeking “relief
from a felony judgment imposing a penalty other than death” for purposes of Article 11.07, Section
1? It seems to me that as long as the Director believed he was justified in incarcerating the inmate
on authority of the judgment, we would afford relief under Article 11.07. Should we not likewise
make “relief” available under Article 11.071 should the Director mistakenly believe that the
judgment of conviction and sentence of death authorized him to draw and quarter a death-row
inmate?
                                                                                              Alba — 8


challenge the “fact or the length or confinement,” 17 the plurality cites Ex parte Lockett.18

Lockett, in turn, cites only a habeas corpus practice manual.19 The manual cites nothing at

all for this proposition. It does go on to say: “The Court of Criminal Appeals has held that

without some form of confinement, you can’t invoke Art. 11.07.” 20 And it is true that in

1987, in Ex parte Renier,21 the Court held that some form of “confinement” was a necessary

prerequisite to obtaining relief under Article 11.07.22 However, as the practice manual also

points out, the Legislature amended Article 11.07 in 1995.                   In that amendment the

Legislature explicitly defined “confinement” to mean “confinement for any offense or any

collateral consequence resulting from the conviction that is the basis of the instant habeas

corpus.” 23 It is doubtful, therefore, that literal confinement is even a prerequisite to post-

        17

        Ex parte Alba, plurality opinion at 4.
        18

        956 S.W.2d 41 (Tex. Crim. App. 1997).
        19

        Id. at 42, citing J. Jasuta, et al., Texas Criminal Writ Practice 88 (1997).
        20

        Jasuta, supra.
        21

        734 S.W.2d 349 (Tex. Crim. App. 1987).
        22

        Id. at 353 (“[U]nless an applicant is confined pursuant to a commitment for a felony
conviction, a postconviction application for habeas corpus relief from collateral consequences of
another conviction will not lie under Article 11.07.”)
        23

        Jasuta, et al., supra, citing Article 11.07, § 3. See Acts 1995, 74th Leg., ch. 319, § 5, p. 2771,
eff. Sept. 1, 1995. This was the same legislative act that introduced Article 11.071. Nothing in
Article 11.071 predicates the availability of relief expressly on “confinement.”
                                                                                          Alba — 9


conviction habeas relief under Article 11.07 anymore, much less a showing that a claim

effects the “fact or length” of confinement. And in any event, the Court made it clear in

Renier that, but for another available post-conviction habeas forum to challenge a “restraint”

less than confinement, the legislative limitation on post-conviction habeas corpus that was

then found to be embodied in Article 11.07 would have constituted an unconstitutional

suspension of the writ.24 For these reasons, the Court today would do well to abjure any

literal application of the “fact and length of confinement” language of Lockett to reject

habeas cognizability to a claim that challenges a restraint upon a liberty interest, but has

nothing to do with literal “confinement.”

       There are other cases in which the Court has held that a purported habeas corpus

application that does not challenge “confinement” does not state a cognizable claim. The

plurality cites one 25 —Ex parte Kerr.26 In Kerr, the purported writ did not challenge the

conviction or death sentence of the applicant, but instead raised claims about the

constitutionality of the procedures prescribed by Article 11.071 itself. Had we agreed with

all of Kerr’s arguments, we still would have had no basis to grant him habeas corpus relief,

       24

        734 S.W.2d at 353. The Court held that, because Renier could still apply for a writ of habeas
corpus to challenge his restraint-less-than-confinement in the district court under Article V, § 8 of
the Texas Constitution, the Legislature did not unconstitutionally suspend the writ under Article I,
§ 12, by prohibiting him from applying for a writ of habeas corpus under Article 11.07. Id.
       25

        Ex parte Alba, opinion, at 4-5.
       26

        64 S.W.3d 414 (Tex. Crim. App. 2002).
                                                                                    Alba — 10


either from his conviction or his death sentence. In fact, Kerr alleged no unconstitutional

restraint whatsoever that could be said to be a product of his capital conviction, never mind

restraint that would rise to the level of “confinement.” The same could be said about Ex

parte Baker.27 There we held that claims challenging the adequacy of counsel in Chapter 64

hearings for post-conviction DNA testing are not cognizable under Article 11.07 because

such proceedings do not result in additional or independent “confinement” beyond that

which flows from the initial conviction, which was not challenged. As in Kerr, the

purported habeas corpus application identified no “restraint” of any degree, much less

confinement, that resulted on account of Baker’s Chapter 64 attorney’s alleged

ineffectiveness and therefore stated no cognizable claim. By contrast, as I have already

shown, each of the instant applicants has alleged a definite restraint upon his liberty interest

in avoiding a cruel and unusual punishment. We cannot deny them some habeas corpus

forum without effectively suspending the writ.

       The plurality also seems to rely, by analogy, upon the opinion of the Supreme Court

in Hill v. McDonough 28 for the proposition that claims that do not implicate the “fact or the

length” of confinement are not cognizable in habeas corpus.29 Even the plurality concedes,

       27

       185 S.W.3d 894 (Tex. Crim. App. 2006). See also Ex parte Suhre, 185 S.W.3d 898 (Tex.
Crim. App. 2006); Ex parte Reyes, 209 S.W.3d 126 (Tex. Crim. App. 2006).
       28

        547 U.S. 573, 126 S.Ct. 2096 (2006).
       29

        Ex parte Alba, plurality opinion, at 5-6.
                                                                                           Alba — 11


however, that Hill was not concerned with whether claims challenging the method of

execution are cognizable in a federal habeas corpus petition.30 The question in Hill was

whether a challenge to the method of execution goes to the “core” concerns of federal habeas

corpus—“the lawfulness of confinement or . . . particulars affecting duration”—such that it

must be raised, if at all, in habeas corpus proceedings and may not be brought in a civil-rights

lawsuit under 42 U.S.C. § 1983.31 This distinction between “core” claims that go to the “fact

or duration of the confinement” and mere “conditions” or circumstances of confinement had

its genesis in Preiser v. Rodriguez.32 The ratio decidendi of that opinion was comity. An

inmate should not be allowed to bypass the state-court exhaustion requirement inherent in

federal habeas corpus proceedings by raising challenges to the fact or duration of his

confinement in a civil-rights lawsuit. Such claims, the Supreme Court held, although they

fall within the ambit of the broad language of Section 1983, must nevertheless be brought

under the more specific provisions of the federal habeas corpus statute, 28 U.S.C. § 2254.

Otherwise, an inmate could forego bringing his challenge in state court altogether by

couching it in terms of a federal Section 1983 civil-rights lawsuit and moving straight into

federal court, thereby defeating the manifest intent of Congress.

       30

       Id., slip op. at 6 (“While Hill determined only that this type of claim did not have to be raised
on habeas rather than that it could not be raised on habeas, the Court’s reasoning is instructive.”).
       31

        Hill v. McDonough, supra, S.Ct. at 2101.
       32

        411 U.S. 475, 499 (1973).
                                                                                      Alba — 12


       But this does not amount to a holding that challenges to the conditions or

circumstances of confinement are not cognizable in a federal habeas corpus proceeding. To

the contrary, the Supreme Court observed in Preiser v. Rodriguez:

              This is not to say that habeas corpus may not also be available to
       challenge such prison conditions. When a prisoner is put under additional and
       unconstitutional restraints during his lawful custody, it is arguable that habeas
       corpus will lie to remove the restraints making the custody illegal.33

Thus, Supreme Court recognized that unlawful restraint can occur even in the context of

otherwise lawful custody, and such restraint may be subject to an equitable remedy via

habeas corpus. The fact that Hill’s particular challenge to the method of his execution did

not go to the “core” concerns of habeas corpus only meant that he could proceed with his

civil-rights lawsuit under Section 1983. It did not mean that such a challenge was not also

cognizable in a federal habeas corpus proceeding.

       At the state level, there is no reason to defer to the interests of comity, federalism, or

exhaustion of state remedies in deciding what should be cognizable under the Great Writ.

There is no particular need, as there was in Preiser v. Rodriguez, to distinguish habeas corpus

claims that challenge the fact or duration of confinement from those that challenge only

conditions or circumstances of confinement in order to protect the right of the states to be the

first to litigate the constitutionality of restraint of liberty. If a condition or circumstance of



       33

        Id. at 499 (citations omitted).
                                                                                           Alba — 13


an inmate’s confinement amounts to an incremental restraint upon his residual liberty interest

that is unconstitutional, then, as I have already suggested, it would amount to a suspension

of the writ to provide the inmate no habeas corpus forum to ventilate his claim. The plurality

errs in relying upon Hill to hold otherwise.

       The plurality also reasons that Article 11.071 is not available to remedy some potential

future constitutional violation.34 “Habeas corpus serves to remedy existing constitutional

violations; it is not for claims that a statute may potentially be applied in a way that may

possibly be determined to be unconstitutional in the future.” 35 Apparently there has been no

constitutional violation in the applicant’s case because he has not yet been executed; the

likelihood that he might actually be executed by lethal injection remains wholly speculative,

the judgment of the trial court and this Court’s mandate on appeal notwithstanding. Each of

these applicants will be heartened to learn, I suppose, that as soon as the lethal drugs do

begin to flow through his veins, his claim that the drugs will cause him such reasonably



       34

        Ex parte Alba, plurality opinion at 7-8.
       35

        Id. To the extent that this assertion embraces a notion that constitutional violations that have
not already been firmly established in case law are not cognizable in habeas corpus, this
pronouncement, for which no authority is cited, sounds vaguely like the federal restriction on the
cognizability of new claims in habeas corpus embodied in Teague v. Lane, 489 U.S. 288 (1989). But
the Teague rule is also grounded in principles of comity and deference to state courts, which have
no application in state habeas corpus jurisprudence. Cf. Danforth v. Minnesota, 552 U.S. ___, 128
S.Ct. 1029, 1041(2008) (“If anything, considerations of comity militate in favor of allowing state
courts to grant habeas corpus relief to a broader class of individuals than is required by Teague.”).
I am not aware that we have ever adopted such a rule of cognizability in Texas.
                                                                                        Alba — 14


avoidable pain as to violate the Eighth Amendment and Article I, § 13 of the Texas

Constitution will become cognizable. Although I imagine he will be somewhat disappointed

to learn that we have declared his claim to be mooted by his untimely death.

       Article 11.071 presently provides the exclusive procedure for the exercise of this

Court’s original habeas corpus jurisdiction when “the applicant seeks relief from a judgment

imposing a penalty of death.” 36 The Legislature is empowered by Article V, § 5(c) of the

Texas Constitution to regulate the procedure by which we entertain post-conviction

applications for writ of habeas corpus.37 But in neither Article 11.071 nor Article 11.07 does

the Legislature presently require a showing of restraint rising to the level of “confinement”

before this Court may exercise its habeas corpus jurisdiction. Even if the Legislature did,

such a substantive limitation on our original habeas corpus jurisdiction would likely

constitute a suspension of the writ in violation of Article I, § 12. The Legislature is free to

regulate the how, when, and where of our original post-conviction habeas jurisdiction. But

I do not think that, even under Article V, § 5(c), the Legislature would ever be free to



       36

         Ex parte Smith, 977 S.W.2d 610, 611 (Tex. Crim. App. 1998), citing Ex parte Davis, 947
S.W.2d 216, 221, 223 (Tex. Crim. App. 1996) (Opinion of McCormick, P.J.) (“the Legislature
clearly has intended for Article 11.071 to provide the exclusive means by which this Court may
exercise its original habeas corpus jurisdiction in death penalty cases.”).
       37

        See TEX . CONST . art. V, § 5(c) (“Subject to such regulations as may be prescribed by law,
the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas
corpus[.]”). See also Ex parte Davis, supra, at 223.
                                                                                      Alba — 15


circumscribe what is cognizable in the Great Writ without violating Article I, § 12.

       An inmate who alleges that the proposed method of his execution would be cruel and

unusual has stated a claim of unconstitutional “restraint” that emanates directly from “a

judgment imposing a penalty of death.” 38 His claim falls comfortably within the ambit of the

statute. It makes no sense for the Court, especially at the present time, to impose a “fact or

length of confinement” limitation upon the applicant’s cruel and unusual punishment claim.

                     DUE PROCESS AND DUE COURSE OF LAW

       No fair-minded citizen approves of the execution of an innocent man. As judges, we

are only a little less appalled at the prospect of executing a man without due process of law.

We should be equally hesitant to execute a man in a manner that would violate his Eighth

Amendment guarantee against cruel and unusual punishment. We are expected to insist upon

all ordinary process to protect against such an unpalatable result.

       As the Court acknowledges,39 the applicant has alleged, inter alia, that the first,

anesthetic drug is not adequately administered under our lethal-injection protocol. He has

thus stated a claim that, if true, would seem to entitle him to relief under Baze.40 Moreover,

       38

        TEX . CODE CRIM . PROC. art. 11.071, § 1.
       39

         Ex parte Chi, plurality opinion at 3-4 (“Chi’s maladministration claim focuses on the
possibility that the first drug in the lethal injection protocol, sodium thiopental (also known as
Pentathol), will not be properly administered.”).
       40

        Thus, the applicant’s subsequent writ application does not fail to satisfy Article 11.071,
                                                                                             Alba — 16


because a challenge to the particular method of execution was not yet ripe at the time these

applicants filed their initial applications for writ of habeas corpus, those claims were

factually unavailable at that time and may be brought in a subsequent writ application.41

When a claim in a subsequent writ application states facts which, if true, would entitle the

applicant to relief, and also includes a pleading of facts sufficient to establish that the

subsequent writ application is not abusive, Article 11.071 contemplates that it be returned

to the convicting court where the writ issues as a matter of law, and the convicting court can

proceed with whatever factual development it deems appropriate, at its discretion.42



Section 5, because it does not state facts sufficient to make out a prima facie case of a federal
constitutional claim, as was the case in Ex parte Staley, 160 S.W.3d 56 (Tex. Crim. App. 2005).
        41

        TEX . CODE CRIM . PROC. art. 11.071, § 5(a)(1) and (e) (subsequent habeas application must
contain specific facts sufficient to establish that “the current claims and issues have not been and
could not have been presented previously in a timely initial application or in a previously considered
application filed under this article or Article 11.07 because the factual . . . basis for the claim was
unavailable on the date the applicant filed the previous application[.] * * * [A] factual basis of a
claim is unavailable on or before a date described by Subsection (a)(1) of the factual basis was not
ascertainable through the exercise of reasonable diligence on or before that date.”).

        We recently held, in a near-unanimous opinion, that a lethal-injection challenge was not “ripe”
on direct appeal, since there was no execution date and the “method in which lethal injection is currently
administered is not determinative of the way it will be administered at the moment of appellant’s
execution.” Gallo v. State, 239 S.W.3d 757, 780 (Tex. Crim. App. 2007). By this reasoning, the factual
basis for these applicants’ challenges to the lethal-injection protocol could not have been
“ascertainable through the exercise of reasonable diligence” at the time their initial writ applications
were filed, since any execution would still likely be a number of years away, and the protocol could
change during the interim. Indeed, in more recent filings challenging the lethal-injection protocol,
we have been advised that the protocol was amended as recently as May 30th of this year!
        42

        TEX . CODE CRIM . PRO . art. 11.071, § 6(b) (“If the convicting court receives notice that the
requirements of Section 5 for consideration of a subsequent application have been met, a writ of
                                                                                           Alba — 17


       Now that the Supreme Court has provided the applicable standard, we should allow

the litigation to proceed in accordance with the statutory scheme. It should be easy enough

to litigate whether the Texas protocol for lethal injection, as actually implemented by the

Director of the Texas Department of Criminal Justice, Correctional Institutions Division,

passes Eighth Amendment muster. There can be only two outcomes to such litigation, if it

is allowed to proceed on the merits.             Either (after adequate discovery and factual

development below) our protocol (as implemented) will be deemed substantially similar to

Kentucky’s, and hence, constitutional, or it will be found lacking in some respect (probably

involving the procedures for assuring that the first drug is adequately administered). If we

find substantial similarity, that will end the litigation—in this and, presumably, every other

capital writ that raises the issue, so long as the protocol is maintained and followed. If not,

then the Director should know how to modify the protocol to achieve a constitutionally

acceptable method of lethal injection, and the matter will be put to rest soon enough. It is

only a matter of time. Still, the plurality denies the applicant a state forum to develop the

issue, though his pleading is sufficient.43 I am at a loss to understand why.


habeas corpus, returnable to the court of criminal appeals, shall issue by operation of law.”); § 9(a)
(“To resolve the issues, the court may require affidavits, depositions, interrogatories, and evidentiary
hearings and may use personal recollections.”).
       43

         It may be that inmates facing imminent execution by lethal injection in Texas can bring a
claim in our state civil courts that our protocol violates the Eighth Amendment under the Baze
standard—I do not know. But even if such a civil forum is available to death-row inmates in theory,
that forum will prove quite impractical for most. Few such lawsuits brought in civil court will be
                                                                                             Alba — 18


        Apparently the Court will not tolerate actual litigation of the issue if that means the

death machine meanwhile must stand idle. But we cannot fix the machine while the cogs are

turning. I would maintain the stays of execution in these causes and return them to their

respective district courts for ordinary factual development. Because the Court does not, I am

compelled to dissent.44


Filed: June 9, 2008
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amenable to final resolution prior to the scheduled execution dates. This Court has held that neither
the district courts nor the courts of appeals in Texas have jurisdiction in a civil case to enter an order
enjoining an execution. State ex rel. Holmes v. Third Court of Appeals, 885 S.W.2d 389, 396 (Tex.
Crim. App. 1994). Because this Court refuses to exercise habeas corpus jurisdiction, and because
the civil courts cannot enjoin executions even if they can entertain challenges to the lethal-injection
protocol, dozens, perhaps even scores, of death-row inmates may eventually be executed before the
matter could be resolved on the civil side of the docket. And in the event that the civil courts should
eventually conclude, in a lawsuit that is commenced years in advance of any scheduled execution
date (and assuming the civil courts do not declare such a suit “unripe” for adjudication, as this Court
has done, see note 41, ante), that our protocol is not sufficiently similar to Kentucky’s to survive
constitutional scrutiny, we will have meanwhile executed that many death-row inmates in a cruel and
unusual manner.
        44

         These are not the knee-jerk sentiments of a bleeding heart. As a district-court judge for ten
years, I presided over capital murder trials and imposed the death penalty without reservation when
the law required it. But capital habeas applicants are entitled to due course of the law. Ex parte
Ramos, 977 S.W.2d 616 (Tex. Crim. App. 1998). And it is almost axiomatic that death is a different
kind of punishment, requiring a higher degree of reliability, and that, where the death penalty is
involved, more process is due, not less. E.g., Beck v. Alabama, 447 U.S. 625, 637-38 (1980).
