dissenting.
Recently, we reaffirmed the long standing, poorly understood notion that habeas corpus is not a substitute for appeal Ex parte Banks, 769 S.W.2d 589 (Tex.Cr.App.1989). The effect was that matters which could have been, but were not, raised on appeal might not later be pursued by way of habeas corpus. The principle is akin to common waiver or forfeiture, whereby litigants are expected to complain of errors in *814due course or risk losing the right to complain of them altogether.
Naturally, a literal application of the rule would utterly eliminate the writ of habeas corpus, at least as a challenge to defects in appealable proceedings, such as criminal trials. Consequently, certain defects have long been regarded as falling outside the rule. In practical effect, these defects cannot be waived, either by failure to object at trial or by the absence of a complaint on appeal. In short, they can be raised at any time, including by a remote collateral proceeding such as habeas corpus.
Chief among such defects, of course, are matters adversely affecting a court’s jurisdiction. Without jurisdiction a tribunal has no authority to act at all, and its purported acts are therefore void. Clearly, defects rendering a proceeding void are not waiva-ble. If they were, the proceeding would not be void but merely voidable. Hence, by implication, habeas corpus will lie to correct jurisdictional defects, that is defects which cannot be waived. See Ex parte Watson, 601 S.W.2d 350 (Tex.Cr.App.1980).
Problems arise, however, when the Great Writ is called upon to correct nonjurisdic-tional, or waivable, defects. For example, during the last twenty years this Court, following a federal lead, has made the writ available to correct errors arising from the violation of federal (and perhaps state) constitutional law upon the rather vague theory that a trial court lacks jurisdiction to convict without due process of law. See Ex parte Young, 418 S.W.2d 824, 826 (Tex.Cr.App.1967). Since most prohibitions of the federal constitution are applicable to the states only by way of the due process clause, it seems that convictions based upon any constitutional error violate due process. And presumably, convictions so obtained are absolutely void, the trial court has no jurisdiction to render judgment upon them. Also it would appear to follow that the defects making them so are not waiva-ble.
But appearances can be deceiving when it comes to such a patent fiction as this. In every context except habeas corpus we do not regard defects as jurisdictional simply because they implicate the federal (and perhaps state) constitution, nor do we regard them as outside the usual rules of waiver and forfeiture for this reason alone. A whole array of alleged constitutional errors are routinely held to present nothing for review when raised for the first time on appeal. Yet some of these at least are thought to be cognizable in a habeas corpus proceeding. On the other hand, certain defects such as insufficiency of evidence are invariably entertained on appeal without the necessity of a complaint at trial, even though our caselaw precludes consideration of them by way of habeas corpus. Yet, a criminal conviction on insufficient evidence, it will be remembered, directly violates due process of law. We should be surprised to find, therefore, that convictions based on constitutionally insufficient evidence are not absolutely void and cognizable in habeas corpus. But such is, indeed, the current state of our caselaw. See, e.g., Ex parte Christian, 760 S.W.2d 659 (Tex.Cr.App.1988).
Further examples could be elaborated at length. Clearly, issues implicating double jeopardy and ineffective counsel, for example, have special problems. The point to be made here is that our approach to the cog-nizability of claims raised by application for writ of habeas corpus has been, and continues to be, hopelessly ad hoc and largely inconsistent with our approach to the law of jurisdiction, voidness, retroactivity, standing, waiver, and forfeiture. Today, we find that it is also potentially at odds with our rapidly evolving law of harmless error.
In a sense, what the majority opinion in this case teaches is that voidness and harmlessness are mutually exclusive concepts —a rather unremarkable proposition on its face, but disturbing in its implications. Here, applicant is denied relief because his claim is not cognizable in habeas corpus. It isn’t cognizable because, even if his contentions are true, the judgment he attacks is not void. The judgment cannot be void because void judgments aren’t subject to a harm analysis. Consequently, any defect *815subject to the harmless error rule is not cognizable in habeas corpus.
This is an interesting result and one which, if pursued with even a modicum of rigor, should significantly reduce this Court’s habeas corpus caseload. Also, it comports fairly well with the antecedent caselaw of the Court, at least when one excludes opinions involving a substantial federal question. It is possible, although not likely in my view, that we are obliged to address federal constitutional questions presented by habeas corpus even under circumstances where we would not be obliged to address state constitutional questions presented in the same way. Certainly, the majority opinion suggests as much. But what is most interesting to me about the approach taken by the majority is that it will doubtless provoke the most creative thinking on the question of cogniz-ability undertaken by the Court in years.
In this connection, I am lately inclined to think that the focus of cognizability should be a more general theory of forfeiture than of voidness. What is cognizable by way of habeas corpus is a matter to be determined by this Court. It can be judicially expanded or contracted to meet current requirements of the system. Moreover, its reach should comport with fairness. Although all defects rendering a proceeding void should continue to be cognizable in habeas corpus for powerful reasons of jurisdiction, I now believe that other defects might also be brought within the scope of the writ under circumstances objectively tending to excuse what would otherwise constitute a forfeiture of the right to complain, so long as the applicant would have been entitled to relief either under the law existing at the time of the alleged defect or under subsequent retroactive changes in the law, and so long as the habeas proceeding will not involve relitigation of an issue previously and finally determined adversely to the applicant’s position unless subsequent retroactive changes in the law would have required a different result.
In Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), the Supreme Court of the United States stated the following in reference to the subject of “fundamental rights in the federal constitution”: “They are not ephemeral enactments, designed to meet passing occasions. They are ‘designed to approach immortality as nearly as human institutions can approach it.’ The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction.” Also see Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
I find that these words have the same meaning when it comes to what meaning we should give to one of the most fundamental rights guaranteed to our citizenry through the Texas Bill of Rights, which is the fundamental and inviolate right to the writ of habeas corpus, which right, by our Constitution, “shall never be suspended.” Art. 1, § 12, Texas Constitution. Also see Art. 1.08, V.A.C.C.P., which states without any limitation or qualification whatsoever that “The writ of habeas corpus is a writ of right and shall never be suspended.”
Therefore, I do not approve denying applicant relief in the instant cause, simply because the proceeding he attacks is not absolutely void, without first affording him a chance to demonstrate that he has not yet had a full and fair opportunity meaningfully to litigate the issues raised in his habeas corpus application or that his failure to do so before now should be excused.