dissenting.
For one primary reason, and two secondary reasons, this application should be dismissed. I therefore dissent to the majority opinion, which addresses the merits of the claim.
This writ application was filed too late to comply with the requirements of Tex.Code Crim. Proc. Ann. art. 11.071. And, as the majority acknowledges, “Literally applied, Article 11.071, Section 4(f) would make it impossible for the applicant to establish good cause for his untimely filing.” (op. at 616). Our only course under the statute is to treat the application as an untimely or subsequent application under Section 5. In this ease applicant does not meet the requirements of Section 5 for consideration of the merits of such an application. As such, the statute tells us that we “shall issue an order dismissing the application as an abuse of the writ.” The first and best reason we should dismiss the application is that the statute does not allow us to do anything else.
The majority finds a constitutional impediment to following the literal language of the statute. It determines that, because applicant relied in- good faith on a mistaken calculation of the trial court, our failure to allow a good faith exception would deny applicant *620due course of law under the Texas Constitution. Article I, Section 19 of our Constitution provides that, “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” It seems to me that the law of the land here relevant is art. 11.071 and the Constitution itself.
Article 5, Section 5, of the Texas Constitution provides, in relevant part:
“Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, ...” (Emphasis supplied).
In Ex parte Davis, 947 S.W.2d 216, 223 (Tex.Crim.App.1996) (McCormick, P.J., concurring), a majority of this Court determined that article 11.071 is the exclusive means by which this Court may exercise its original habeas corpus jurisdiction in death penalty cases. Since Article 5, Section 5, of the Constitution and Article 11.071 are the relevant law, and both are complied with only by dismissing the application, I do not see how applicant would be deprived of due course of law by the Court doing so.
A second reason to dismiss the application concerns the majority’s belief that good cause exists in this case. The majority concludes that there is good cause because applicant filed the application late in reliance on an erroneous time calculation by the trial court. The record shows that applicant asked the trial court to extend the time for filing until August 22. The miscalculation was applicant’s — not the court’s. Faulting the trial court under these circumstances is inappropriate and allows applicant to benefit from tardiness that is of his own creation.
A third reason to dismiss the application concerns the notion that it “violates the spirit of article 11.071”1 or that it “borders on barbarism”2 for us to refuse to consider the merits of a capital murder writ application simply because of a missed deadline. An unfortunate practice has arisen regarding “extensions” of time to file. The statute does not allow a court to grant an extension of time to file. The statute requires that the application be filed within 180 days from the appointment of counsel. If the application is filed after 180 days, the application is presumed untimely unless the applicant establishes good cause (defined as “particularized justifying circumstances”) for the late filing. If good cause is established, the trial court is then to proceed as if the application had been timely filed. Thus, the statute does not contemplate extensions of time. Instead, it allows an applicant to establish after a late application is filed that there was good cause to file late. And it provides what seems to me to be a generous buffer zone— ninety days — for late filing.
Here, counsel was appointed on November 22, 1996, so applicant was required to file the application by May 21, 1997. On May 22, 1997, applicant requested the unauthorized extension. Applicant could have filed an untimely application as late as August 19, 1997, if the trial court had found good cause for the late filing. He filed it on August 22, 1997, ninety-three days after it'was due.
The legislature clearly was aware of the dangers of imposing a strict timetable, and crafted the statute to avoid any possible unfairness that might have resulted from imposing absolute time limits. Not only does the statute allow a 90-day grace period for non-compliance with the time limits, it requires the trial court to hold a good cause hearing within ten days of the 180-day due date if the application is not timely filed. The legislature took into account the contingencies of good cause, miscalculation of time limits, and missed deadlines. But it also imposed an absolute prohibition against exceeding the 90-day grace period. Our lawmakers intended to create an absolute deadline, they were entitled to do so, and it was not unfair for them to do so. And it is in no way unfair for our Court to abide by the guidelines the legislature has imposed.
*621I would dismiss this application as an abuse of the writ. I respectfully dissent from the decision to do otherwise.
. Ex parte Smith, 977 S.W.2d 610 (Tex.Crim.App.1998) (Baird, J., dissenting)
. Ex parte Smith, 977 S.W.2d 610 (Tex.Crim.App.1998) (Overstreet, J., dissenting)