IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 51,264-03
EX PARTE DERRICK SEAN O=BRIEN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 9402971
FROM THE 184TH DISTRICT COURT OF HARRIS COUNTY
Johnson, J., filed a dissenting statement.
D I S S E N T I N G S T A T E M E N T
This case presents questions about what legal procedures are appropriate for challenging the execution protocol.
Are the provisions of Article 11.071 the proper vehicle to challenge the constitutionality of the execution protocol used in conducting an execution in Texas? If not, what is the proper vehicle?
What is the proper legal method for presenting facts regarding and challenging the execution protocol used in conducting an execution in Texas?
Analogous procedural issues in the federal system are under review in Hill v. Crosby, 126 S.Ct. 1189 (2006)(argued and pending decision). The underlying issue of the execution protocol is the same in this case as in Hill.
The issue of the proper legal procedure for challenges to execution protocols must be addressed at some point. We very recently said, albeit in an unpublished opinion, that a challenge is not ripe until the execution is Aimminent.@ Doyle v. State, No. 74, 960 (Tex. Crim. App., delivered May 10, 2006). AImminent@ means Alikely to occur at any moment; impending.@ Webster=s Encyclopedic Unabridged Dictionary of the English Language (Gramercy Books 1989). The concurrence says that the challenge is ripe once a death date is set, although the Court has not said that. Death dates are set months in the future and so are not Aimminent@ when set. If both positions are taken as authoritative, both the applicant and the Court are caught in a Catch-22; the challenge cannot be raised or heard until it is Aimminent,@ yet it must be raised and heard as soon as the death date is set. Thus these important issues can never be reviewed.
Accepting arguendo that the current mixture of drugs does not violate constitutional protections, the issue must still be addressed. We cannot say that the protocol will never change. A different protocol may indeed violate constitutional guarantees. We will be then faced with the same legal issues we face today, and they will still be unresolved and unresolvable because such challenges will always be both unripe and over-ripe.
I respectfully dissent.
Filed: May 17, 2006
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