As the summary order of the Court indicates, this applicant is without counsel, yet is scheduled to be put to death at an early morning hour of Tuesday next. Thus, without benefit of counsel he is reduced to filing pro se hisfirst post-conviction petition for a writ of habeas corpus and representing himself because this Court refuses to grant his motion to stay his impending execution so that the Texas Resource Center may recruit competent counsel to assist and to represent him.
I respectfully dissent, urging this Court to confront head on "the crisis stage in capital representation" in this State. The Spangenburg Group, A Study of Representation of CapitalCases in Texas (State Bar of Texas), at i-ii.
Meanwhile, we should consider the motion and supporting papers as pleadings in the nature of an application for extraordinary relief, thereby invoking the constitutional original jurisdiction of this Court under Article V, Sec. 5, para. three, and as further prescribed by Article4.04, Sec. 1, V.A.C.C.P.
On that basis we should cause the Court to stay the scheduled execution of applicant.
Further, I would order and direct the judge of the convicting court below to recall its warrant of execution pursuant to Tex.R.App.Pro. 233; to exercise its authority to determine whether applicant is "indigent" within the meaning of Articles 26.04 and 26.05, V.A.C.C.P.; if so, to determine whether "the interests of justice" require that applicant have representation of counsel in a post-conviction habeas corpus proceeding; and, if so, to appoint competent counsel to aid and assist applicant in preparing and filing a petition for such writ of post-conviction habeas corpus in accordance with Article 11.07 and related provisions in Chapter Eleven, V.A.C.C.P., and to represent applicant in the resultant proceedings under Article 11.07, including proceedings upon return of the writ and accompanying record to this Court.
With available assets at hand this Court and judges of convicting courts must utilize them to ease the current "crisis in capital representation." We should not be reluctant to preserve resort to postconviction remedies on account of some perceived fault in the representative of the party seeking benefits of those remedies.