dissenting.
Article I, § 12 of the Bill of Rights provides:
“The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.”
When any person is restrained in his liberty, the writ of habeas corpus is the remedy to be used. Article 11.01, V.A.C.C. P. To make it speedy and effectual the Legislature has enacted, inter alia, the several provisions of Chapter Eleven, Code of Criminal Procedure.
Generally, once preliminary procedures have been accomplished and the matter is ripe for decision, the habeas judge or court shall determine whether “legal cause be shown for the imprisonment or restraint,” and if none, to discharge the applicant. Article 11.40. See Ex parte Coupland, 28 Tex. 387, at 390, 391 (1862). Chapter Eleven “applies to all cases of habeas corpus for the enlargement of persons illegally held in custody or in any manner restrained in their personal liberty[.]” Article 11.64.1
Pursuant to Article 11.07, V.A.C.C.P., after final conviction in felony cases the writ will lie to challenge “legality of the applicant’s confinement,” resulting in a judgment of this Court either “remanding the petitioner [sic] to custody or ordering his release, as the law and facts may justify.” Id., § 2(c) and (d), and § 3.
Today, without citing any precedent, the majority would have the Court pronounce: “The Great Writ should not be used to litigate matters which should have been raised on appeal.” Slip opinion, at 2.2 While admonitory in tone, that sounds like a restatement of a variously phrased common law axiom that a writ of habeas corpus cannot serve the office or purpose of, nor be a substitute for, an appeal. See generally 38 Tex.Jur.3d Extraordinary Writs § 34. As may be true of maxims perpetuated by rote, however, heedless repetition has obscured its intendment.
So far as discovered, a similar version first appeared in Ex parte Roya, 85 Tex.Cr.R. 626, 215 S.W. 322 (1919); albeit having decided the contention presented by applicant was “without merit,” id., 215 S.W. at 322-323, Judge Lattimore, for himself and Judge Morrow, wound up with a sort of policy statement, viz:
“Notwithstanding our statutes plainly provide how a case may be brought directly to this court by appeal so that all questions may be fully presented, appellant attempts to bring the case here by habeas corpus, presenting no question that might not have been brought up regularly on appeal.
*542We do not think this court should encourage or permit collateral attacks by habeas corpus on judgments in cases where the matters complained of should properly be brought here by appeal. Ex parte McKay, [82 Tex.Cr.R. 211,] 190 S.W. 637 [1917], and authorities cited; Ex parte White, 50 Tex.Cr.R. 473, 98 S.W. 850 [1906].”
Id., 215 S.W. at 323. Dissenting Presiding Judge Davidson pointed out the cause “brings in review the validity and constitutionality of the Zone Law....” Ibid. Let us examine those two cases and authorities cited.
Typically an applicant, convicted and ordered confined by judgment of a trial court, sued out a writ of habeas corpus claiming entitlement to release from custody or discharge from consequences of judgment. Upon denial of relief by a lower court an applicant usually appealed from that order, rather than file original application for habeas corpus in this Court.3
Focusing on the latter because more in point than Ex parte McKay (seeking discharge from pretrial custody pursuant to capias after indictment, id., 190 S.W. at 638), we find in Ex parte White, supra, essential facts are that applicant was fourteen years old at time of trial (though that fact was not then shown); that upon arraignment for felony theft applicant expressed his desire to plead guilty; that the trial court properly admonished him and then instructed the jury to assess punishment; that applicant was sentenced to two years imprisonment and that while in the penitentiary he filed a writ of habeas corpus before the district judge, alleging lack of any proof to the jury, denial of two days to prepare for trial and, after sentence being pronounced, two days to make a motion for new trial and, finally, the court adjourned the day of sentencing thus denying his right to appeal. Upon hearing the writ the judge of the convicting court denied relief and remanded applicant to penitentiary authorities. Id., 98 S.W. at 851.
On appeal, as Judge Brooks saw the matter for the Court, applicant was “seeking relief by habeas corpus for irregularities in the trial that could have been availed of by appeal.” Ibid. Given that posture of the matter, he analyzed the law governing the situation, viz:
“... The writ of habeas corpus is not available as a means of effecting the purposes of an appeal. Perry v. State, 41 Tex. 488; Ex parte Scwartz, 2 Tex.App. 74; Ex parte Oliver, 3 Tex.App. 345; Ex parte Dickerson, 30 Tex.App. 448, 17 S.W. 1076. The matters complained of by appellant would have merely rendered the judgment voidable, and not void, if the complaint had been made on appeal. This being true, the writ of habeas corpus cannot be used as a right of appeal. Ex parte Boland, 11 Tex.App. 159; Ex parte Crawford, 36 Tex.Cr.R. 180, 36 S.W. 92.”
Ibid4 Accordingly, the judgment was affirmed.
In the cases cited in Ex parte White, id., 98 S.W. at 851, and in Ex parte McKay, id., 190 S.W. at 639, 640, the Court drew from opinions of the Supreme Court of Texas when it exercised jurisdiction in criminal law matters and also from learned treatises. As Ex parte White teaches, the true lesson in cases similarly situated is that after conviction only claims of a certain character are cognizable by a habeas court — not that an applicant forfeits his right to present his claims because he also could appeal but did not or, if he did, failed to raise them.
*543Illustrative is Ex parte Scwartz, 2 Tex.App. 74 (Ct.App.1877), in which the Court applied common law rules to resolve an appeal from a judgment of a county court dismissing his application for habeas corpus. Procedurally the matter is somewhat complicated; germane developments are summarized below in the margin.5 As the Court viewed it, “the sole object of the petition for habeas corpus is to make the writ answer the purposes of an appeal from the mayor’s court to the county court, and to revise the action of the county court in dismissing his appeal, and to afford redress against the action of the county judge in refusing to award a writ of certio-rari sought for the purpose of affording relief against the action of the mayor in the case.” Id., at 79. Upon reviewing and applying the authorities, the Court affirmed, viz:
“ ‘A proceeding defective for irregularity and one void for illegality may be revised upon error or certiorari; but it is the latter defect only which gives authority to discharge on habeas corpus.’ An irregularity is defined to be a want of adherence to some prescribed rule or mode of proceeding, and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner. Hurd on Ha-beas Corpus, 333, citing Tidd’s Pr. 434, and 3 Chitty’s GenbPr. 509.
Illegality is properly predicable of radical defects only, and signifies that which is contrary to the principles of law as distinguished from mere rules of procedure. It denotes a complete defect in the proceedings. Hurd, 333; Tidd’s Pr. 435.
******
‘The writ of habeas corpus was not designed to operate as a writ of error or certiorari, and does not have their force and effect. It does not deal with errors or irregularities which render proceedings voidable merely, but such only as render them absolutely void.’ Perry v. The State, 41 Texas, 490.”
Id., at 80-81 (emphasis in original). Further, the Court noted the holding in Darrah v. Westerlake, Chief of Police, 44 Tex. 388 (1876).6 In applying it, the Court said:
“[T]he county judge could only have inquired whether in this case the mayor ... has power to hear and determine a charge of assault and battery. * * * * Nor could he, we believe, have revised the action of the county court in dismissing his appeal, or in refusing a certiora-ri, on the ground set out in the petition for that writ, as embodied in the record before us.”
Id., at 81. Accordingly, the Court concluded, “We are unable to see, from anything in the record before us, that the relator has been illegally restrained of his liberty, or that the county judge erred in causing him to be remanded to the custody of the marshal until the fine and costs are paid.” Thus the judgment was affirmed. Id., at 82.
Contemporaneously, the Court decided Ex parte Slaren, 3 Tex.App. 662 (Ct.App 1878). Convicted by recorder for violation *544of city ordinance requiring a license to operate a public hack, and committed to jail for failure to pay fine and costs, applicant did not take an appeal, but instead sued of writ of habeas corpus in an original proceeding in the Court of Appeals. Therein he asserted the ordinance was unconstitutional; the Court agreed and ordered him discharged from confinement, viz:
“It is conceded that the writ of habeas corpus cannot be invoked for the purpose of correcting errors, or to subserve the purpose of an appeal or writ of error. Hurd on Hab. Corp. 333; Perry v. The State, 41 Texas, 490; Ex parte Scwartz, 2 Texas Ct.App. 74, and authorities cited. The rule is otherwise when the proceedings sought to be inquired into are radical in their character, illegal, and void. [Quoting Hurd, ante: Illegality is properly predicable of radical defects et cet-era (as in Ex parte Scwartz, supra)].
[On holding in Ex parte Gregory, 1 Texas Ct.App. 753] the proceedings under which the applicant is held are without authority of law and void [and applicant is discharged from confinement].”
Id., at 667-668.
All other decisions cited in Ex parte White and Ex parte McKay are of like vein. See, e.g., Ex parte Dickerson, 30 Tex.App. 448, 17 S.W. 1076 (1891), and authorities collated therein. None holds that every collateral attack against a judgment of conviction is prohibited by law because the challenge “should properly be brought here by appeal,” Ex parte Roya, supra.7 Almost uniformly the threshold question went to integrity of the judgment, viz: Whether the claim is that the judgment is void for illegality or voidable for irregularity. Examination of the pleadings usually sufficed to provide an answer, and more likely than not also practically determined the ultimate conclusion.
Indeed, a close reading of his majority opinion in Roya reveals the setting in which Judge Lattimore would have the Court implement his notion. At the threshold he takes pains to point out:
“... No attack is made in the application on the constitutionality of the law under which applicant was convicted. Nor on any alleged error in procedure making the judgment of conviction void.”
Id., 215 S.W. at 322. Instead, applicant contended that the indictment did not charge an offense under the law, his theory being the underlying statute had been impliedly repealed and superseded. Only after the majority found his contention without merit did Judge Lattimore venture to suggest his policy of abstention.
Later on, however, sometimes the question was never asked in the first place because the Court thought it enough to say axiomatically, “A writ of habeas corpus cannot serve the office of an appeal.” An example is Ex parte Beland, 94 Tex.Cr.R. 614, 252 S.W. 529, at 530 (1923).8 And there is a host of similar decisions rendered prior to 1943, as indicated in digests and annotations to pertinent constitutional and statutory provisions. However, most arose on application for the writ to test validity of initial custody or restraint pursuant to a complaint purporting to charge an offense, whether a misdemeanor, e.g., Ex parte Drenner, 125 Tex.Cr.R. 331, 67 S.W.2d 870 (1934), or a felony “in advance of return of an indictment and trial thereon,” Ex parte Overstreet, 129 Tex.Cr.R. 574, 89 S.W.2d 1002, at 1003 (1936), or “after indictment to *545prevent a trial on the merits,” Ex parte Meers, 129 Tex.Cr.R. 465, 88 S.W.2d 100 (1935) — situations requiring “a full development of the facts,” and thus “entirely different in principle from Ex parte Roquemore, 60 Tex.Cr.R. 282, 131 S.W. 1101, 32 L.R.A.(N.S.) 1186 [1910],” Ex parte Meers, supra, 88 S.W.2d at 101.9
During that period, of course, Chapter Eleven did not contain specific procedures designed solely for handling postconviction writs of habeas corpus. See Historical Note to Article 11.07. Acts 1943, 48th Leg. Ch. 233, p. 354, proposed to fill the void in felony cases by authorizing any district judge presented with an application to set the same for hearing, to ascertain the facts and to order issuance of the writ returnable to this Court along with the record made, and as well by a supplementary proceeding whereby this Court might have the facts determined, to the end that this Court then hear the matter and “enter its judgment remanding the petitioner to custody or ordering his release, as the law and facts may justify.” That procedure was to be “exclusive” in discharging the prisoner. Its justification is stated in § 2, viz:
“[P]resent statutes governing the writ of habeas corpus are inadequate to fully cover cases arising after final conviction, and [a] necessity exist[s] for prompt and adequate relief for deserving petitioners as well as the rights of the state in such cases[.]”
Except “as the law and facts may justify,” the Legislature failed to identify “deserving” prisoners. However, at first opportunity, Ex parte Ricketts, 148 Tex.Cr.R. 569, 189 S.W.2d 872 (1945), the Court firmly preserved the status quo ante.10
Thus common law rules prescribing issues cognizable on post-conviction habeas corpus prevailed, and those limitations remained in force — that is, until advent of The Substantial Federal Question. See, e.g., Ex parte McCune, 156 Tex.Cr.R. 213, 246 S.W.2d 171 (Tex.Cr.App.1952).11 In the *546latter part of its opinion the Court took up the issue of due process, viz:
“There is no question but that this court not only has the power but it is its duty to prevent enforcement of a judgment in a criminal case obtained under circumstances and conditions which constitute a denial of due process of law. We know, also, that if the state provides no remedy whereby a state prisoner may seek redress from imprisonment claimed to be in violation of federal constitutional rights, the federal courts will act to protect such federal rights, [citations omitted].... [T]he Supreme Court of the United States defines denial of due process in a criminal trial as ‘the failure to observe that fundamental fairness essential to the very concept of justice.’ ”
Id., 246 S.W.2d at 172-173. Accord: Ex parte Puckett, 165 Tex.Cr.R. 605, 310 S.W.2d 117 (1958):
“[Because a prior federal conviction] was not available to enhance the punishment ... and [thus] the allegations of the indictment are insufficient to sustain a life sentence[,] this Court [will exercise its] power and authority to prevent the enforcement of a judgment obtained under circumstances which constitute a denial of due process.”
Id., 310 S.W.2d at 118.
In Ex parte Bush, 166 Tex.Cr.R. 259, 313 S.W.2d 287 (1958), a presumptively insane defendant was convicted as an habitual offender without benefit of counsel; upon his application for writ of habeas corpus so claiming, the Court ordered a hearing in the convicting court to develop the facts. That done, from the record the Court concluded applicant had sustained his allegations and established a deprivation of due process. Confirming its power and authority to prevent enforcement of a judgment thus obtained, the Court reasoned:
“While the proceeding here is new to this Court, it is now clear that where after conviction, regular on its face and on the record, it is made to appear that the defendant was denied due process of law at the trial, and this Court refuses to issue the writ of habeas corpus applied for, the Supreme Court of the United States will reverse and remand the cause to this Court for further proceedings not inconsistent with the opinion of that Court”
Id., 313 S.W.2d at 288. But cf. dissenting opinion of Judge Davidson, at 289: “We have so often said that the writ of habeas corpus can not be used as a substitute for an appeal that it should now be axiomatic.” See also Note, Habeas Corpus — Judgments — Deprivation of Due Process in State Conviction Is Grounds for State Habeas Corpus Proceeding, 37 Texas L.Rev. 496 (Apr.1959).
However constructive the legislative intentions in 1943, and diligent the efforts of the Court to implement and effectuate them when federal constitutional rights were implicated, lest its refusal be reversed by the Supreme Court and remanded for further proceedings, Ex parte Bush, supra, 313 S.W.2d at 288 (Tex.Cr.App.1958), and Ex parte McCune, supra, at 246 S.W.2d 172-173 (1952), they failed to meet needs of increased federal habeas corpus litigation and concomitant demands of the Supreme Court on petitioners and state courts, respectively, in such cases as Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, at 313-319, 83 S.Ct. 745, at 757-759, 9 L.Ed.2d 770 (1963). Therefore, in Acts 1967, 60th Leg., Ch. 659, p. 1732, § 7, at 1734-1735 (Act), the Legislature reworked and expanded procedural requisites to produce revised Article 11.07, V.A.C.C.P.
Unlike its earlier 1943 effort in behalf of “deserving petitioners,” the Legislature provided standards for obtaining relief, viz: pleadings that “would render petitioner’s confinement under the felony conviction illegal; ” proof going to issues material to “whether the petitioner is illegally restrained,” Acts 1967, ante, at 1734-1735.
In Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967), the Court construed amended *547Article 11.07 in light of several developments, including “[n]ew concepts of the meaning of due process announced by the Supreme Court of the United States,” recognizing, “A judgment of conviction obtained in violation of due process of law is void for want of jurisdiction of the court to enter such judgment," and that Article 11.07 provides “an effective, adequate and speedy post conviction remedy in that it offers the applicant the opportunity for a full and fair state court fact-finding hearing of the sort dictated by the Supreme Court in Townsend v. Sain, [supra].” 418 S.W.2d, at 826. It set out the 1967 Act, clearly indicating all changes made by the Legislature, and suggested examples of due process violations warranting relief. Id., at 827-829.
The Court concluded, inter alia, that its construction of the Act did indeed support holdings that the statute provides “an effective, adequate and speedy post conviction remedy,” met the “need of Federal Courts for fact-findings as well as a record from which they may determine whether a hearing in Federal Court is required” and produces “fact-findings which the Court of Criminal Appeals or the Federal Courts may adopt.” Further, its construction was found to be consistent with new concepts of due process and rules of Townsend v. Sain, supra, concerning when a federal habeas court “must grant a hearing, including the exhaustion of state remedies (Fay v. Noia, supra).” Id., at 830.
In sum, in 1967 the Legislature devised and the Court sanctioned by construction a system to render the remedy via habeas corpus “speedy and effectual,” consonant with the admonition and mandate of Article I, § 12, of our Bill of Rights. Thus the constitutional provisions guarantee availability of the Great Writ pursuant to legislative enactments designed to enable an applicant to make a collateral attack and to obtain relief against a final judgment of conviction rendered void not only for reasons under the common law but also for want of jurisdiction of the convicting court to enter it where conviction was had in violation of due process. Taken literally, they prohibit judicially imposed barriers at the threshold of access to the courts by a convicted felon seeking this “writ of right.”12
Recited by rote as a litany, the axiom that a writ of habeas corpus cannot substitute for an appeal becomes such a barrier. However, as it was explicated by Mr. Hurd and other scholars and understood by our appellate courts, see ante, at 542-544, there is no barrier.
Habeas corpus is reserved for consideration of certain asserted errors that are extremely radical in character, viz: “illegalities” contrary to basic principles of law, including those of constitutional dimension, rendering a proceeding void. Of course, they may also be presented on appeal. However, lesser claimed errors — “irregularities” implicating no more than mere rules of procedure — are not cognizable on habeas corpus and, therefore, may be redressed only on appeal. The latter and other minor defects must be addressed on appeal or perhaps in some other available forum, such as an administrative agency or one that possesses clemency powers.
Thus what the axiom actually means is the fact that those certain claimed illegalities have not been raised on appeal will not preclude an applicant from seeking and a habeas court from granting relief from illegal postconviction confinement, custody or restraint. Compare Ex parte Clark, 597 S.W.2d 760 (Tex.Cr.App.1979), with Ex parte Coleman, 599 S.W.2d 305 (Tex.Cr.App.1979), both dealing with error in charge to jury.
In the instant cause the majority says error in excluding a prospective juror “on statutory grounds” may not be considered “for the first time in an application for writ of habeas corpus,” in that the contention is the excusal was “in violation of a procedur*548al statute,” which the majority identifies globally as Article 35.16, V.A.C.C.P. Slip opinion, at 540-541.13 In fact, applicant’s third ground for relief is that McAfee was excluded by the trial court without any legal ground “in violation of [his] right to due process and equal protection of law, provided him by the United States and Texas Constitutions.” Brief, at 7.
An erroneous exclusion, as this one appears to be, purportedly based on a state statute may still raise a constitutional due process question. See, e.g., Ex parte Williams, 748 S.W.2d 461, at 464 (Tex.Cr.App.1988), and Ex parte Hughes, 728 S.W. 2d 372, at 375 (Tex.Cr.App.1987), each of which involved exclusions under a “procedural statute,” as indeed did Ex parte Bravo, 702 S.W.2d 189 (Tex.Cr.App.1982), “distinguished” herein by the majority.
While the Court ultimately might reject it, because the majority refuses for the wrong reason to examine the constitutional claim made by applicant, I respectfully dissent.
. The formulations are reminiscent of a royal pledge confirmed in the Great Charter of King John, the Magna Charta, viv
39. No freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by lawful judgment of his peers, or by the law of the land."
3 Vernon’s Texas Constitution (1955) 675, at 680. (All emphasis throughout this opinion is mine unless otherwise indicated.)
. On original submission a majority had proclaimed that "failure to raise the issue as a ground of error in the appeal precludes assertion of the matter by post-conviction habeas corpus, absent a showing of a change in the law or some other ground that would justify a belated assertion of the matter."
. An explanation for cases coming to the Court on appeal from a judgment below on habeas corpus is in Ex parte Lambert, 37 Tex.Cr.R. 435, 36 S.W. 81 (1896). Noting there are certain matters over which "district judges are authorized to entertain jurisdiction and grant the writ of habeas corpus,” and that the Court had like jurisdiction but was also authorized "to review such cases on appeal,” therefore, "we now lay down the rule that, except in extraordinary cases, we will not entertain jurisdiction as a court to grant original writs of habeas corpus.” Id., 36 S.W. at 82.
. The Court went on to hold the question of applicant’s age should have been raised during trial, and because it was not he could not successfully invoke the writ of habeas corpus. Ibid.
. After conviction in mayor’s court for assault and battery, applicant attempted to perfect an appeal to county court but, on motion of county attorney to dismiss for want of a sufficient appeal bond, the court dismissed his purported appeal and issued a writ procedendo to mayor’s court to execute judgment; apparently applicant then filed a petition for certiorari to remove the original case from mayor’s court to county court but it was not entertained; committed to jail for want of payment of fine and costs, applicant sought habeas corpus relief in county court, and on hearing the writ the county judge dismissed the case and remanded applicant to custody of the city marshal. Appeal to the Court followed. Id., at 75-79.
. After a recorder found him guilty of violating a municipal fire ordinance, applicant undertook to challenge validity of his conviction by habeas corpus in criminal district court; because the court refused to take testimony tending to disprove facts found by recorder and remanded him to custody, he appealed. The Supreme Court held:
"So long as the judgment of the recorder remained in force it was not competent for appellant to enter into an investigation of the facts upon which the recorder entered his judgment. This could only be done by an appellate court.
The writ of habeas corpus cannot be made use of to effect an appeal or writ or error.” Id., at 389.
. As indicated ante at 540-541, Judge Lattimore seems to have originated the notion, and the cases show that he continued to advance it as a matter of policy, e.g., Ex parte Garcia, 90 Tex.Cr.R. 287, 234 S.W. 892, 893 (1921); Ex parte Matthews, 96 Tex.Cr.R. 497, 258 S.W. 477 (1924).
. Committed to the penitentiary, applicant contended the trial court "was without power to revoke the suspended sentence” in that its action came after term of sentence had expired. The Court found, “The question presented is one of much interest, and we regret that under the settled holdings of this court [that habeas may not serve as an appeal] it cannot be considered." Id., 252 S.W. at 530. The theory was after revocation and pronouncement of sentence his right of appeal accrued and "this was the legal, adequate and statutory remedy;" citations are former article 856, C.C.P. (1911), now Article 42.04, V.A.C.C.P., "Sentence when appeal is taken,” and three cases relating to taking an appeal vis a vis a suspended sentence, e.g., Ex parte Lawson, 76 Tex.Cr.R. 419, 175 S.W. 698 (1915).
. In Roquemore, supra, applicant had already been convicted in an inferior court and, though giving notice of appeal, "omitted or failed to perfect his appeal," ⅛ 131 S.W. at 1102; he claimed the conviction was obtained under a statute that did not proscribe his alleged conduct. Upon reviewing the statute the Court agreed, so "manifestly no offense is charged, and none could be charged upon any state of case made by this record," ibid; therefore, the Court ordered applicant discharged, id., at 1105. That is to say, the conviction was vulnerable to collateral attack on habeas corpus because void for illegality — notwithstanding want of appeal.
Compare Ex parte Minor, 146 Tex.Cr.R. 159, 172 S.W.2d 347 (1943) (on habeas in lieu of appeal Court will not inquire into “sufficiency of an indictment of information where it is based on valid law under which an offense could be charged," contrasting, e.g., Roquemore, supra. Id., 131 S.W. at 347-348).
. The Court understood applicant to take the position that under amended article 119, "he has the legal right to impeach and set aside an apparently valid judgment of a court of competent jurisdiction, and that he may substitute the writ of habeas corpus for the remedy accorded him by an appeal from such judgment;” pointedly it noted the circumstance that the trial court had "jurisdiction of the person, of the subject matter, as well as the power to render the judgment, is not even questioned.” Alluding to die maxim that "a writ of habeas corpus cannot be substituted for the remedy of an appeal," the Court thought that "unless said article accords to the relator such right, it does not exist,” but found "nothing in the statute mentioned which ... enlarged his legal right[.]" Because it was obvious that the proceeding applicant initiated was a collateral attack on what appears to be a valid judgment of a court of competent jurisdiction, "[tjhis he cannot do any more than he can resort to the writ of habeas corpus as a substitute for the right of an appeal.” Id., 189 S.W.2d at 873.
Then, to demonstrate the latter proposition the Court quoted from Ex parte Dickerson, supra, to the same effect as the decisions cited and discussed ante, at 542-544, thereby making clear that applicant was raising mere irregularities rather than established illegalities.
.Having been convicted of capital murder with the death penalty assessed, and the judgment having been affirmed on direct appeal (The Court carefully noting, "The judgment of the court has not been carried out."), applicant applied to the convicting court for a writ of habeas corpus pursuant to former article 119. After restating the jurisdiction of the Court was primarily appellate, its only original jurisdiction being to entertain applications for habeas corpus, and further that here "the use of the writ of habeas corpus amounts to a substitute for an appeal, which we have repeatedly held to be unavailing," the Court pointed out a procedural vacuum in our state law, viz:
“In this connection, it should be remembered that we do not have a statute in this state similar to those in other states ..., *546whereby a remedy is provided to meet the situation which relator here seeks to invoke."
Id., 246 S.W.2d at 172.
. The “open courts" mandate of Article I, § 13 and the "due course” requirements of § 19 seem to forbid courts from closing their doors to persons seeking relief from "injury" done to person and from deprivation of liberty. See Interpretive Commentary following § 13 and 19.
. In making his challenge the prosecutor based it on his statement “that if any juror has any consciencious [sic] scruples or any bias or prejudice against any phase of the law," elaborating, “Mr. McAfee knowing both individuals involved in this as he did, and having stating [sic] that that oath [to jury under Article 35.22] just couldn’t remove that from him, [he] is subject to challenge for cause and we would submit on that basis.” [S.F. 1374, 1375-1376]. The trial judge then inquired into McAfee’s ”hav[ing] more knowledge about this defendant than perhaps any other member of this jury, ... than someone else that did not know him; upon receiving an affirmative answer the judge declared, “In that event, I’m going to excuse Mr. McAfee for causef.]’’ [S.F. 1376-1377]. The record reflects that, like applicant, McAfee is black. [S.F. 1377].