dissenting.
I write to address the Court’s resolution of applicant’s argument that Article 11.071, V.A.C.C.P. “suspends” the Great Writ, contrary to Article I, Section 12 of the Texas Constitution. The majority concludes that “Article 11.071, pursuant to the constitutional mandate to the Legislature to enact laws to render the remedy speedy and effectual, simply provides for the methodology for rendering and effecting the implementation of the right to writ of habeas corpus and does not prevent this Court from exercising its constitutional powers over the writ of habeas corpus.” Majority op. at 219. Similarly, in his concurring opinion Judge McCormick opines that “Article 11.071 is a valid exercise of the Legislature’s power under Article 1, Section 12, of the Texas Constitution, to ‘enact laws to render the remedy speedy and effectual.’ ” Concurring op. at 225. As if it were some consolation, Judge McCormick then assures us that the new capital habeas statute “continues to provide an applicant greater opportunity to obtain habeas corpus relief in death penalty cases than what existed at common law.” Id., at 225. But the only thing Article 11.071 is designed to “render ... speedy and effectual” is the denial of the remedy, not the remedy itself. Moreover, that the statute does not reduce the number of issues currently recognized as cognizable in a post-conviction application for writ of habeas corpus back to that which was available under the common law does not mean it does not otherwise “suspend” the writ. To the extent that Article 11.071 renders unavailable a cognizable claim never before asserted in a previous post-conviction writ, it regulates that claim into oblivion. I dissent.
I.
Under the common law, a post-conviction application for writ of habeas corpus was available only to remedy such defects as rendered the conviction “void.” See Ex parte Banks, 769 S.W.2d 539, 541-45 (Tex.Cr.App. 1989) (Clinton, J., dissenting), and eases cited therein; Ex parte Tuan Van Truong, 770 S.W.2d 810, 811 (Tex.Cr.App.1989). But:
“[a]s the United States Supreme Court began to recognize, for purposes of implementing federal habeas corpus provisions, *236that ‘[a] court’s jurisdiction at the beginning of trial may be lost’ on account of some federal constitutional defect committed in the proceedings, Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, 1468 (1938), so, too, this Court began to consider violations of certain federal constitutional rights to impact the integrity, if not jurisdiction, of the trial court to such an extent as to render a conviction ‘void’ for purposes of our own post-conviction collateral review. See cases discussed in Ex parte Banks, supra, at 545-47.”
Ex parte Crispen, 777 S.W.2d 103, 106 (Tex. Cr.App.1989) (Clinton, J., concurring). Seizing on this Court’s apparent willingness to entertain such claims in our own habeas forum, the federal courts began to “dismiss federal writs under the rubric of exhaustion of state remedies. E.g., Carroll v. Beto, 319 F.2d 329 (C.A.5 1967).” Id, at 107. With the 1967 amendments to Article 11.07, V.A.C.C.P., and this Court’s gloss of those amendments in Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967), this Court was fully in the business of reviewing federal constitutional claims in post-conviction applications for habeas corpus. As I observed in Ex parte Crispen:
“It seems all but certain that states are not compelled by any provision of the federal constitution to provide post-conviction collateral avenues for vindication of federal constitutional rights. See Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); Cf. Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965). Nevertheless, by incorporating the notion of the federal courts that a constitutional
defect can render a conviction ‘void’ into its own post-conviction habeas corpus jurisprudence, this Court did in fact provide such an avenue.”
Id, at 107. Even though the federales themselves have long ago abandoned the fiction that federal constitutional defects may render a conviction “void,” id, at 107-08, this Court has continued to recognize practically all federal constitutional claims as cognizable in state post-conviction habeas corpus. In essence, “we have agreed to review some merely ‘voidable’ claims in post-conviction collateral attack.” Id, at 109.
There may well be compelling policy reasons for this Court to entertain as cognizable in a post-conviction writ claims that may later be raised in the federal habeas forum.1 Nevertheless, I have argued since 1989 that, if we are going to recognize federal constitutional claims at all in state habeas corpus proceedings, we ought at least to limit them to “exceptional” claims, invoking rights or guarantees “so fundamental to the fair operation of the system as to be 1) immune to procedural default, 2) not subject to a harm analysis, and 3) fully retroactive in application.” Ex parte Sadberry, 864 S.W.2d 541, 545 (Tex.Cr.App.1998) (Clinton, J., dissenting). “I would also adopt a doctrine of excuses, entertaining any federal constitutional claim recognized as of the time of trial but for which a record could not have been made, despite due diligence of the accused, in time to preserve the error for direct appeal.” Id The Court has ignored my suggestions, adhering to the broader statement of habeas cognizability found in Ex parte Banks, viz: “Traditionally, habeas corpus is available only to review jurisdictional defects, or deni-*237ais of fundamental or constitutional rights.” 769 S.W.2d at 540 (citations omitted). Under this broader view of habeas cognizability, we have said that habeas applicants bringing federal constitutional claims that are subject to ordinary principles of procedural default and to analyses for harm must plead and prove lack of default and presence of harm before it can be said they have stated a claim entitling them to relief. Ex parte Dutchover, 779 S.W.2d 76 (Tex.Cr.App.1989); Ex parte Barber, 879 S.W.2d 889 (Tex.Cr.App.1994) (Plurality opinion); Ex parte Fierro, 934 S.W.2d 370 (Tex.Cr.App.1996). Whether or not one agrees that it was anomalous to recognize the whole gamut of federal constitutional claims, even those subject to procedural default and harm analysis, in state collateral attack, it cannot be gainsaid that the scope of the Great Writ has expanded to cover those claims. Once this Court has said what the scope of the Great Writ is, the Legislature is not free to impose temporal restrictions that effectively render a claim that falls within that scope unavailable. The Legislature especially cannot do this in the guise of making “the remedy speedy and effectual.”
II.
Section 5 of Article 11.071 prohibits this Court from considering the merits of any claim brought untimely or after a first timely application under the provisions of Section 4, unless the applicant can meet certain specific exceptions. An applicant filing a subsequent application is not entitled to counsel until after he has made the showing required of Section 5, according to Section 2(h). He must show, sans counsel, either that the factual or legal basis for his subsequent claim was not available as of the time for filing his first application, Section 5(a)(1); that, by a preponderance of the evidence, but for a federal constitutional violation, no rational jury would have convicted him, Section 5(a)(2); or that, by clear and convincing evidence, but for a federal constitutional violation no rational jury would have answered one or more of the Article 37.071 special issues in such a way as to assess the death penalty, Section 5(a)(3). Thus, this Court may not predicate relief upon any untimely, unexcused claim of federal constitutional error that does not meet these strict “actual innocence” criteria. The “actual innocence” standard embodied in Subsections 5(a)(2) and 5(a)(3) mirrors that for bringing successive writ applications in federal habeas review of state convictions. See Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
Two kinds of claim now cognizable in an initial post-conviction habeas corpus will not meet the criteria of Section 5 of Article 11.071. First, a claim of federal constitutional infirmity that was either brought in an earlier application, or else could have been, will not satisfy Section 5 unless accompanied by a valid claim of “actual innocence.” This means that most federal constitutional defects, even those that the applicant can show contributed to his conviction or punishment (as he must, even in an initial application), will not present a basis for relief in a successive writ application. Second, a claim of jurisdictional defect or failure to abide a fundamental or “systemic” requirement, see Marin v. State, 851 S.W.2d 275 (Tex.Cr.App. 1993), even such as to render the conviction void, will most likely fail to meet the rigid criteria of Section 5. Thus, even the paradigm common law basis for relief in a post-conviction habeas corpus application is unavailable under Article 11.071 to an applicant who could have raised the claim in an earlier application, but failed to. These cognizable claims — held by this Court to be cognizable because so weighty as to defeat the State’s otherwise legitimate interest in the finality and repose of its convictions — are rendered out of reach because untimely.
The Court concludes that placing such claims beyond the successive applicant’s effective reach “does not prevent this Court from exercising its constitutional powers over the writ of habeas corpus.” Majority op. at 219. But purporting to render what this Court has recognized as cognizable claims beyond this Court’s authority even to scrutinize, much less grant relief, does nothing if not prevent this Court from exercising its constitutional writ power. Judge McCormick likens the Article 11.071 limitations on successive writs to the notion expressed by *238Judge Teague, in his dissenting opinion in Ex parte Renier, 734 S.W.2d 349 (Tex.Cr.App. 1987), that the Legislature can prescribe what amounts to proper venue for granting habeas corpus relief. Judge McCormick’s idea is, as I understand it, that as long as it does not “make the writ unavailable ... or eliminate altogether the power of courts to employ it[,]” the Legislature may regulate “when an applicant must seek ... relief.” Concurring op. at 225. Because all constitutional, jurisdictional or fundamental claims will be entertained in a timely initial application, Article 11.071 does not “suspend” the writ.
But in my view Judge McCormick’s analogy fails. It is obvious that prescribing where habeas relief must be granted neither renders the writ unavailable nor eliminates it. A deserving applicant can always obtain relief, so long as he makes his application in the proper forum. When he applies in the wrong forum and fails to obtain relief, he can still apply in the proper forum and get his relief there. But prescribing when habeas relief may be granted is another matter. Article 11.071 provides what I presume to be the exclusive procedure for obtaining habeas corpus relief from a judgment imposing a sentence of death.2 Yet, there are claims this Court has always regarded, or has come to regard over the years, as cognizable on collateral attack that are placed beyond this Court’s ability to grant relief, even if the applicant can show he is deserving. Because a writ challenging a capital conviction cannot be made returnable in any court but this one, no other court can grant a deserving capital applicant relief. Legitimate habeas corpus relief is thus made “unavailable.” This Court’s power to grant that relief is “eliminated altogether.” The writ can hardly get more “suspended” than that!
I am not unmindful of the opinion of the United States Supreme Court in Felker v. Turpin, 518 U.S. -, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). There the petitioner contended that certain abuse of the writ provisions in the Antiterrorism and Effective Death Penalty Act of 1996 operated to suspend the federal writ of habeas corpus, in violation of Article I, Section 9, the Suspension Clause of the United States Constitution. The Supreme Court dispatched this claim almost summarily, observing:
“In McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), we said that ‘the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.’ Id., at 489, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517. The added restrictions which the Act places on second habeas petitions are well within the compass of this evolutionary process, and we hold that they do not amount to a ‘suspension’ of the writ contrary to Article I, § 9.”
Id., at-, 116 S.Ct. at 2340,135 L.Ed.2d at 840. But unlike the Supreme Court, this Court has no seasoned jurisprudence pertaining to abuse of the writ, nothing at all to compare to McCleskey v. Zant and the cases cited therein. It is true that on rare occasions we have paid lip service to a fairly strict notion of abuse of the writ. See Ex parte Carr, 511 S.W.2d 523 (Tex.Cr.App. 1974). But in practice we have always allowed an inmate to file any number of habeas applications, often raising the same contentions time after time, or raising new contentions that easily could have been incorporated in an earlier writ or writs. Typically he will not be cited for abuse of the writ until his repetition has severely tested the limits of the Court’s patience. See e.g., Ex parte Dora, 548 S.W.2d 392, at 393 (Tex.Cr.App. 1977) (Court cited applicant for abuse of the writ for bringing same claims, not merely a second time, but “over and over again”). The reality is that we have never judicially imposed anything approaching a rigorous abuse of the writ doctrine in Texas.
Nor has the Legislature ever before codified one. Heretofore the only statutory contributions to the post-conviction habeas *239process have been procedural in nature, designed to facilitate the review of federal constitutional claims in State habeas corpus, not to restrict it. Ex parte Young, supra. See also Ex parte Truong, supra, at 812-13 (“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 the conviction was had in violation of due process.”); Ex parte Banks, supra, at 547 (Clinton, J., dissenting) (same). Thus, it simply cannot be said in Texas that depriving this Court of authority to rule on cognizable post-conviction habeas claims is just an incremental step in some “evolutionary process” of “historical usage, statutory developments, and judicial decisions.” We have no history of delimiting availability of the Great Writ — in fact, quite the contrary. The Supreme Court’s analysis in Felker v. Turpin, such as it is, does not lend itself to ready application under the Texas Constitution.
Moreover, there are differences between the federal Suspension Clause and our own. Article I, Section 9 of the United States Constitution describes the writ of habeas corpus as a “Privilege,” which may, albeit under extremely rare and narrow circumstances, be suspended. In Texas, by contrast, at least since the Constitution of 1876, Article I, Section 12 of the Texas Constitution declares the writ of habeas corpus to be “a writ of right, [which] shall never be suspended.” Nevertheless, after today’s decision in this cause, some post-conviction applicants for writ of habeas corpus who are able to show their convictions are “void,” either for jurisdictional or constitutional reasons, will be entitled to relief, while others who can show identically invalid convictions will not. The only difference is that those who obtain relief will have brought their claims within the temporal limitations prescribed by the Legislature. In my view, suspending the writ as to some, but not all, still amounts to suspending the writ.
Nobody is more solicitous of the State’s interest in the finality of its hard-won convictions than I am. That is the reason I have advocated a stricter jurisprudence of cogniza-bility of claims in post-conviction habeas corpus. But the Legislature cannot both leave this Court’s overly-broad pronouncements as to the scope of the writ intact, and at the same time designate that some applicants raising matters cognizable under the writ are entitled to relief, while others, raising those same cognizable matters, are not. Whether the Legislature can prescribe cognizability of claims on post-conviction habeas corpus pursuant to its constitutional authority to “regulate” this Court’s power to issue the writ, under Article V, Section 5 of the Texas Constitution, is a question we need not address today. This is because Article 11.071 does not purport to speak to the scope of the writ, only to when it must be brought. Unfortunately, in regulating the time within which a writ must be brought, the statute abrogates this Court’s authority to grant relief for claims we have deemed, without legislative contradiction, cognizable in post-conviction habeas corpus. That, in my opinion, “suspends” the writ.
Once the appellate process has run its course and a criminal conviction becomes final, confinement pursuant to that conviction is either lawful, or it is unlawful, for purposes of post-conviction habeas corpus. Indeed, what it means to say a claim is cognizable in habeas corpus is that if the claim is borne out, the applicant’s confinement has been shown to be legally intolerable, notwithstanding the State’s interest in repose. For purposes of collateral attack, the lawfulness of confinement cannot rationally be made to turn on when it is challenged. What we can all agree is my illegal confinement today does not become legal confinement tomorrow by virtue of the fact that I neglect to complain about it until then. Likewise, a sentence of death is either legal or not for purposes of post-conviction collateral attack. It cannot be unlawful to execute me one day, but lawful the next, simply because I delay calling the illegality to the Court’s attention. Yet that is the manifest intent and effect of Article 11.071, Section 5. I believe that suspends *240what Article I, Section 12 declares “shall never be suspended.” I therefore dissent.
MALONEY, J. Joins.. Professors Dix and Dawson argue that it is appropriate for this Court to consider federal constitutional claims in state collateral attack, for two, essentially policy, reasons:
"First, this permits State courts to make factual findings that will be entitled to deference in any subsequent federal attacks that may be mounted on the convictions. Thus this approach gives the Texas courts as much control over these cases as is possible, given the continued availability of federal habeas to Texas defendants. Second, since the Texas authorities brought and processed the original proceedings, the state should properly assume responsibility for inquiry into claims that state authorities dramatically — and constitutionally — erred in carrying out that task. That federal courts remain available to conduct such inquiries if the Texas courts refuse to do so does not suggest that the state tribunals should not do so and thus burden the federal courts with responsibility for reviewing proceedings which the federal government had no responsibility for bringing.”
Dix & Dawson, 43 Texas Practice: Criminal Practice and Procedure, Section 45.73 (1995), at 468.
. Article 11.07, § 5, V.A.C.C.P., expressly provides that it is the exclusive procedure for collaterally attacking a noncapital conviction. While I find no comparable provision in Article 11.071, I nevertheless presume the Legislature meant for it to be the exclusive procedure for collaterally attacking a capital conviction.