









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,510


EX PARTE JOHN AVALOS ALBA, Applicant
 




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM COLLIN COUNTY



 Johnson, J., filed a dissenting opinion in which Holcomb, J. joined.


O P I N I O N



	The federal courts have returned this case to us so that applicant may exhaust his state
remedies on a claim of an Eighth Amendment violation.  Our response is to close all avenues for
review.  When a claim of constitutional dimension is raised, there simply must be a mechanism for
considering it on its merits.
	Because this is a death case, our  options include the statutory writ of habeas corpus pursuant
to Article 11.071 of the Texas Code of Criminal Procedure, the constitutional writ pursuant to
Article V, § 5, or a writ of prohibition.  Judge Price has set out the case for the statutory writ, Judge
Cochran has set out the case for the constitutional writ, and In Chi v. State, __S.W.3d ___, (2008),
Judge Hervey has set out the case for the writ of prohibition.  None of the options suit this situation
well.  In this context, however, due process of law requires  access to some form of habeas corpus;
the writ of prohibition is unsuited to be the mechanism of choice.
	The requirements of a writ of prohibition, as for a writ of mandamus, are that there be no
adequate remedy at law and either that the duty to do or not do is ministerial or that the applicant has
a clear right to the relief he wants.  Many times each year we issue remand orders that recite that the
applicant has stated facts that, if true, would entitle him to relief.  The critical issue is, of course, "if
true."  We remand for a hearing because, at the time we issue the remand order, we do not know if
the applicant's allegations are, in fact, true.  Due process demands that we make an effort to
determine where truth lies.
 Chi, Alba, and all the other cases being held for them, hang on a single issue-the
constitutionality of the Texas lethal-injection protocol-that has never been subject to a hearing of
any kind.  Certainly the Texas protocol is similar to the Kentucky protocol in the kind of drugs
administered and some of the training standards for executioners and dissimilar in other ways, such
as the amount of each drug used.  Remaining at issue is whether the Texas protocol has safeguards
that are at least at the level of Kentucky's practices-approved by Chief Justice Roberts and
excoriated by Justice Ginsberg.  Due process requires that there be, in at least one case, a hearing 
that considers the Texas safeguards to determine whether they pass muster.  Without a hearing, we
cannot say whether applicant does or does not have a clear right to relief.
	At this point, we cannot say whether applicant's allegations, if true, entitle him to relief.  To
dismiss them without a hearing of any kind by saying that his claims have no merit turns the writ of
prohibition into a door to a brick wall.  Given the recent decision of the United States Supreme Court
in Baze v. Kentucky, __ U.S. __, 128 S.Ct. 1520 (2008), applicant is unlikely to prevail on the merits,
but the likelihood of prevailing on the merits should not determine how we deal with the claims.  It
is likely that, some time in the future, we will again be faced with claims that do not fit neatly into
one of the usual boxes.  Discerning now how this claim can be heard on the merits will be of value
to this Court when that day comes.  I respectfully dissent.	

Filed: June 9, 2008
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