IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
IN CAUSE NO. W219-81215-91(HC2) FROM THE
199TH DISTRICT COURT OF COLLIN COUNTY
ORDER
This is a subsequent application for habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts the chemical protocol used to carry out his execution will violate his constitutional right against cruel and unusual punishment.
Applicant was convicted of capital murder in May, 1992. This Court affirmed the conviction and sentence on direct appeal. Alba v. State, 905 S.W.2d 581 (Tex.Crim.App. 1995). Applicant's sentence was vacated by the United States Court of Appeals for the Fifth Circuit. Alba v. Johnson, 232 F.3d 208 (5th Cir. 2000). After retrial, the jury answered the punishment issues in such a way that the death sentence was again imposed. This Court affirmed the judgment and sentence on direct appeal. Alba v. State, No. 71,487 (Tex. Crim. App., delivered April 16, 2003). After review of his initial applicant for writ of habeas corpus filed pursuant to Article 11.071, this Court denied relief. Ex parte Alba No. WR-36,711-02 (Tex.Crim.App., filed October 15, 2003).
We must consider whether a claim that the execution chemical protocol may violate the constitutional rights of the condemned is cognizable in a writ of habeas corpus. Before making the decision in this case, we invite, applicant, the State, and the Texas Department of Criminal Justice to present their positions on the following question: Is a claim that the lethal-injection protocol violates the Eighth Amendment cognizable under Article 11.071 of the Texas Code of Criminal Procedure?
All briefs on these issues should be delivered to this Court within 60 days from the date of this order.
IT IS SO ORDERED THIS THE 20th DAY OF September, 2006.
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