filed a dissenting opinion.

Eight months ago, the momentum of the death machine in Texas propelled us to an unseemly execution. On the same day that the United States Supreme Court agreed to examine the constitutionality of the Kentucky protocol for lethal injection,1 Michael Richard died on the gurney before the mechanism could grind to a halt. The Supreme Court has since spoken, and a plurality has provided us with a standard *707for measuring the constitutionality of our own execution protocol.2 The question for our consideration is whether our own lethal-injection protocol, particularly the protocol for assuring that the first anesthetic drug is properly administered, is “substantially similar” to that in Kentucky which the plurality upheld.3 Today, a plurality of this Court dismisses two habeas corpus applications raising such a claim,4 holding that the claim is not cognizable under Article 11.071 of the Texas Code of Criminal Procedure, our capital habeas corpus statute.5 In my view, the claim falls comfortably within the ambit of the statute. Nevertheless, the Court insists on withholding the rudiments of due process and due course of law in its equally unseemly haste to crank the machine back up. I cannot go along with this.

COGNIZABILITY UNDER ARTICLE 11.071

I have argued in the past that a challenge to our lethal-injection protocol ought to be entertained in a subsequent application for writ of habeas corpus under Section 5 of Article 11.071.6 I have also dissented to the Court’s unwillingness in the past even to consider “whether a challenge to the lethal-injection protocol actually constitutes a post-conviction application for writ of habeas corpus at all, under Article 11.071, since it may not constitute a challenge to ‘a judgment imposing a penalty of death.’ ”7 Today the Court finally reaches the question of cognizability of such a claim and concludes that it is not cognizable. I disagree.

“The writ of habeas corpus is a procedural device for subjecting executive, judicial, or private restraints on liberty to judicial scrutiny.”8 Even a death-row in*708mate retains certain residual — albeit necessarily limited, but nevertheless constitutionally protected — liberty interests.9 Among those is the interest in not having the executive branch of government, in the form of the Texas Department of Criminal Justice, Correctional Institutions Division, which is tasked with carrying out his lawful execution, do so in a manner that would constitute “cruel and unusual punishment[ ]” as prohibited by the Eighth Amendment to the United States Constitution,10 or “cruel or unusual punishment” as prohibited by Article I, § 13 of the Texas Constitution.11 Surely we would not sit idly by and allow the applicant to be drawn and quartered, if that were the method that the Director of TDCJ-CID [the Director] chose to carry out his execution, since such a method would unquestionably constitute cruel and unusual punishment.12 Yet today the Court declares that we are powerless to invoke our habeas corpus authority to halt such an unconstitutional implementation of an otherwise lawful warrant of execution because the method of execution, unconstitutional though it may be, does not effect the “fact or the length of confinement.” 13 I find this holding intolerable.14

*709A death-row inmate does not serve a specific length of sentence; he is confined until he is either executed, commuted, or exonerated. It makes little sense in this context to analyze habeas corpus cogniza-bility in terms of the “fact or length” of confinement. The convicted capital murderer who has been legitimately sentenced to death has no liberty interest in the sense that he can ever expect to be free from confinement, so long as he fives. Indeed, he does not even retain a “fife” interest that is sufficient to overcome the State’s legitimate interest in extinguishing it, consonant with due process. The one substantive constitutional right he unquestionably retains, however, is the right, when the time comes, to be executed in a humane manner. I cannot accept that the Great Writ should not be an available remedy for the applicant to raise an Eighth Amendment challenge to the manner of his execution on the ground that it does not impact the “fact or length” of his confinement, which is incidental, but only the manner of his execution.

Article 11.071 of the Code of Criminal Procedure “establishes the procedures for an application for a writ of habeas corpus in which the applicant seeks relief from a judgment imposing a penalty of death.”15 If the Director’s purported authority for subjecting a death-row inmate to a fingering and torturous death is the warrant of execution, which in turn is authorized by the mandate of this Court following affir-mance of a trial court’s judgment imposing the death penalty, then any “relief’ the inmate seeks on account of the obvious Eighth Amendment violation would be relief from that judgment. It may not constitute absolute relief in the sense that it would absolve the inmate from imposition of the ultimate penalty of death. But it would constitute relief from the unlawful implementation of an otherwise lawful penalty and release the inmate from the incremental encroachment upon his liberty interest in not being put to death in an inhumane manner. A valid judgment and sentence of death authorizes an execution, but it does not (and could not under any circumstances) authorize a cruel and unusual execution.16 For this reason I would *710hold that the applicant’s claim is cognizable under Article 11.071.

For the proposition that to be cognizable a post-conviction habeas claim must challenge the “fact or the length or confinement,” 17 the plurality cites Ex parte Lockett.18Lockett, in turn, cites only a habeas corpus practice manual.19 The manual cites nothing at all for this proposition. It does go on to say: “The Court of Criminal Appeals has held that without some form of confinement, you can’t invoke Art. 11.07.”20 And it is true that in 1987, in Ex parte Renter,21 the Court held that some form of “confinement” was a necessary prerequisite to obtaining relief under Article 11.07.22 However, as the practice manual also points out, the Legislature amended Article 11.07 in 1995. In that amendment the Legislature explicitly defined “confinement” to mean “confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.”23 It is doubtful, therefore, that literal confinement is even a prerequisite to post-conviction habeas relief under Article 11.07 anymore, much less a showing that a claim effects the “fact or length” of confinement. And in any event, the Court made it clear in Renter that, but for another available post-conviction habeas forum to challenge a “restraint” less than confinement, the legislative limitation on post-conviction habeas corpus that was then found to be embodied in Article 11.07 would have constituted an unconstitutional suspension of the writ.24 For these reasons, the Court today would do well to abjure any literal application of the “fact and length of confinement” language of Lockett to reject habeas cognizability to a claim that challenges a restraint upon a liberty interest, but has nothing to do with literal “confinement.”

There are other cases in which the Court has held that a purported habeas corpus application that does not challenge “confinement” does not state a cognizable claim. The plurality cites one25 — Ex parte Kerr.26 In Kerr, the purported writ did not challenge the conviction or death sentence *711of the applicant, but instead raised claims about the constitutionality of the procedures prescribed by Article 11.071 itself. Had we agreed with all of Kerr’s arguments, we still would have had no basis to grant him habeas corpus relief, either from his conviction or his death sentence. In fact, Kerr alleged no unconstitutional restraint whatsoever that could be said to be a product of his capital conviction, never mind restraint that would rise to the level of “confinement.” The same could be said about Ex parte Baker.27 There we held that claims challenging the adequacy of counsel in Chapter 64 hearings for post-conviction DNA testing are not cognizable under Article 11.07 because such proceedings do not result in additional or independent “confinement” beyond that which flows from the initial conviction, which was not challenged. As in Kerr, the purported habeas corpus application identified no “restraint” of any degree, much less confinement, that resulted on account of Baker’s Chapter 64 attorney’s alleged ineffectiveness and therefore stated no cognizable claim. By contrast, as I have already shown, each of the instant applicants has alleged a definite restraint upon his liberty interest in avoiding a cruel and unusual punishment. We cannot deny them some habeas corpus forum without effectively suspending the writ.

The plurality also seems to rely, by analogy, upon the opinion of the Supreme Court in Hill v. McDonough28 for the proposition that claims that do not implicate the “fact or the length” of confinement are not cognizable in habeas corpus.29 Even the plurality concedes, however, that Hill was not concerned with whether claims challenging the method of execution are cognizable in a federal habeas corpus petition.30 The question in Hill was whether a challenge to the method of execution goes to the “core” concerns of federal habeas corpus — “the lawfulness of confinement or ... particulars affecting duration” — such that it must be raised, if at all, in habeas corpus proceedings and may not be brought in a civil-rights lawsuit under 42 U.S.C. § 1983.31 This distinction between “core” claims that go to the “fact or duration of the confinement” and mere “conditions” or circumstances of confinement had its genesis in Preiser v. Rodriguez.32 The ratio decidendi of that opinion was comity. An inmate should not be allowed to bypass the state-court exhaustion requirement inherent in federal habeas corpus proceedings by raising challenges to the fact or duration of his confinement in a civil-rights lawsuit. Such claims, the Supreme Court held, although they fall within the ambit of the broad language of Section 1983, must nevertheless be brought under the more specific provisions of the federal habeas corpus statute, 28 U.S.C. § 2254. Otherwise, an inmate could forego bringing his challenge in state court altogether by couching it in terms of a federal Section 1983 civil-rights lawsuit and moving straight into federal court, thereby defeating the manifest intent of Congress.

*712But this does not amount to a holding that challenges to the conditions or circumstances of confinement are not cognizable in a federal habeas corpus proceeding. To the contrary, the Supreme Court observed in Preiser v. Rodriguez:

This is not to say that habeas corpus may not also be available to challenge such prison conditions. When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.33

Thus, Supreme Court recognized that unlawful restraint can occur even in the context of otherwise lawful custody, and such restraint may be subject to an equitable remedy via habeas corpus. The fact that Hill’s particular challenge to the method of his execution did not go to the “core” concerns of habeas corpus only meant that he could proceed with his civil-rights lawsuit under Section 1983. It did not mean that such a challenge was not also cognizable in a federal habeas corpus proceeding.

At the state level, there is no reason to defer to the interests of comity, federalism, or exhaustion of state remedies in deciding what should be cognizable under the Great Writ. There is no particular need, as there was in Preiser v. Rodriguez, to distinguish habeas corpus claims that challenge the fact or duration of confinement from those that challenge only conditions or circumstances of confinement in order to protect the right of the states to be the first to litigate the constitutionality of restraint of liberty. If a condition or circumstance of an inmate’s confinement amounts to an incremental restraint upon his residual liberty interest that is unconstitutional, then, as I have already suggested, it would amount to a suspension of the writ to provide the inmate no habeas corpus forum to ventilate his claim. The plurality errs in relying upon Hill to hold otherwise.

The plurality also reasons that Article 11.071 is not available to remedy some potential future constitutional violation.34 “Habeas corpus serves to remedy existing constitutional violations; it is not for claims that a statute may potentially be applied in a way that may possibly be determined to be unconstitutional in the future.”35 Apparently there has been no constitutional violation in the applicant’s case because he has not yet been executed; the likelihood that he might actually be executed by lethal injection remains wholly speculative, the judgment of the trial court and this Court’s mandate on appeal notwithstanding. Each of these applicants will be heartened to learn, I suppose, that as soon as the lethal drugs do begin to flow through his veins, his claim that the drugs will cause him such reasonably avoidable pain as to violate the Eighth Amendment and Article I, § 13 of the *713Texas Constitution will become cognizable. Although I imagine he will be somewhat disappointed to learn that we have declared his claim to be mooted by his untimely death.

Article 11.071 presently provides the exclusive procedure for the exercise of this Court’s original habeas corpus jurisdiction when “the applicant seeks relief from a judgment imposing a penalty of death.”36 The Legislature is empowered by Article V, § 5(c) of the Texas Constitution to regulate the procedure by which we entertain post-conviction applications for writ of ha-beas corpus.37 But in neither Article 11.071 nor Article 11.07 does the Legislature presently require a showing of restraint rising to the level of “confinement” before this Court may exercise its habeas corpus jurisdiction. Even if the Legislature did, such a substantive limitation on our original habeas corpus jurisdiction would likely constitute a suspension of the writ in violation of Article I, § 12. The Legislature is free to regulate the how, when, and where of our original post-conviction habeas jurisdiction. But I do not think that, even under Article V, § 5(c), the Legislature would ever be free to circumscribe what is cognizable in the Great Writ without violating Article I, § 12.

An inmate who alleges that the proposed method of his execution would be cruel and unusual has stated a claim of unconstitutional “restraint” that emanates directly from “a judgment imposing a penalty of death.”38 His claim falls comfortably within the ambit of the statute. It makes no sense for the Court, especially at the present time, to impose a “fact or length of confinement” limitation upon the applicant’s cruel and unusual punishment claim.

DUE PROCESS AND DUE COURSE OF LAW

No fair-minded citizen approves of the execution of an innocent man. As judges, we are only a little less appalled at the prospect of executing a man without due process of law. We should be equally hesitant to execute a man in a manner that would violate his Eighth Amendment guarantee against cruel and unusual punishment. We are expected to insist upon all ordinary process to protect against such an unpalatable result.

As the Court acknowledges,39 the applicant has alleged, inter alia, that the first, anesthetic drug is not adequately administered under our lethal-injection protocol. He has thus stated a claim that, if true, would seem to entitle him to relief under Baze.40 Moreover, because a challenge to the particular method of execution was not yet ripe at the time these applicants filed *714their initial applications for writ of habeas corpus, those claims were factually unavailable at that time and may be brought in a subsequent writ application.41 When a claim in a subsequent writ application states facts which, if true, would entitle the applicant to relief, and also includes a pleading of facts sufficient to establish that the subsequent writ application is not abusive, Article 11.071 contemplates that it be returned to the convicting court where the writ issues as a matter of law, and the convicting court can proceed with whatever factual development it deems appropriate, at its discretion.42

Now that the Supreme Court has provided the applicable standard, we should allow the litigation to proceed in accordance with the statutory scheme. It should be easy enough to litigate whether the Texas protocol for lethal injection, as actually implemented by the Director of the Texas Department of Criminal Justice, Correctional Institutions Division, passes Eighth Amendment muster. There can be only two outcomes to such litigation, if it is allowed to proceed on the merits. Either (after adequate discovery and factual development below) our protocol (as implemented) will be deemed substantially similar to Kentucky’s, and hence, constitutional, or it will be found lacking in some respect (probably involving the procedures for assuring that the first drug is adequately administered). If we find substantial similarity, that will end the litigation-in this and, presumably, every other capital writ that raises the issue, so long as the protocol is maintained and followed. If not, then the Director should know how to modify the protocol to achieve a constitutionally acceptable method of lethal injection, and the matter will be put to rest soon enough. It is only a matter of time. Still, the plurality denies the applicant a state forum to develop the issue, though his pleading is sufficient.43 I am at a loss to understand why.

*715Apparently the Court will not tolerate actual litigation of the issue if that means the death machine meanwhile must stand idle. But we cannot fix the machine while the cogs are turning. I would maintain the stays of execution in these causes and return them to their respective district courts for ordinary factual development. Because the Court does not, I am compelled to dissent.44

filed a dissenting opinion in which HOLCOMB, J. joined.

When a claim of constitutional dimension is raised, there simply must be a mechanism for considering it on its merits. Because this is a death case, our current options include the statutory writ of habe-as corpus pursuant to Article 11.071 of the Texas Code of Criminal Procedure, the constitutional writ of habeas corpus pursuant to Article V, § 5, or a writ of prohibition. Judge Price has set out the case for the statutory writ, Judge Cochran has set out the ease for the constitutional writ, and Judge Hervey has set out the case for the writ of prohibition. None of the options suit this situation well. In this context, however, due process of law requires ae-cess to some form of habeas corpus; the writ of prohibition is unsuited to be the mechanism of choice.

The requirements of a writ of prohibition, as for a writ of mandamus, are that there be no adequate remedy at law and either that the duty to do or not do is ministerial or that the applicant has a clear right to the relief he wants. Many times each year we issue remand orders that recite that the applicant has stated facts that, if true, would entitle him to relief. The critical issue is, of course, “if true.” We remand for a hearing because, at the time we issue the remand order, we do not know if the applicant’s allegations are, in fact, true. Due process demands that we make an effort to determine where truth lies.

Chi, Alba, and all the other cases being held for them, hang on a single issue — the constitutionality of the Texas lethal-injection protocol — that has never been subject to a hearing of any kind. Certainly the Texas protocol is similar to the Kentucky protocol in the kind of drugs administered and some of the training standards for executioners and dissimilar in other ways, such as the amount of each drug used. *716Remaining at issue is whether the Texas protocol has safeguards that are at least at the level of Kentucky’s practices — approved by Chief Justice Roberts and excoriated by Justice Ginsberg. Due process requires that there be, in at least one case, a hearing that considers the Texas safeguards to determine whether they pass muster. Without a hearing, we cannot say whether applicant does or does not have a clear right to relief.

At this point, we cannot say whether applicant’s allegations, if true, entitle him to relief. To dismiss them without a hearing of any kind by saying that his claims have no merit turns the writ of prohibition into a door to a brick wall. Given the recent decision of the United States Supreme Court in Baze v. Rees, - U.S. -, 128 S.Ct. 1520 (2008), applicant is unlikely to prevail on the merits, but the likelihood of prevailing on the merits should not determine how we deal with the claims. It is likely that, some time in the future, we will again be faced with claims that do not fit neatly into one of the usual boxes. Discerning now how this claim can be heard on the merits will be of value to this Court when that day comes. I respectfully dissent.

OPINION

announced the judgment of the Court and delivered an opinion

Chi is a death-row inmate who had an execution date set when he filed a subsequent (second) habeas corpus application under Article 11.071, Tex.Code Crim. Proe., and a motion for leave to file a petition for a writ of prohibition. These pleadings contain a claim that Texas’ lethal-injection protocol violates the Eighth Amendment’s prohibition against cruel and unusual punishments and a request that Chi’s execution be prohibited under Texas’ current lethal-injection protocol.

In Ex parte Alba, the applicant challenged Texas’ lethal-injection protocol in a subsequent habeas corpus application. See Ex parte Alba, 256 S.W.3d 682, 683-84 (Tex.Cr.App. 2008). We held that this is not a cognizable habeas corpus claim under Article 11.071, and we dismissed Alba’s subsequent habeas corpus application. See Alba, 256 S.W.3d at 687. Pursuant to Alba, we also dismiss Chi’s subsequent *703habeas corpus application in Ex parte Chi, No. WR-61,600-02.

With respect to Chi’s petition for a writ of prohibition, Chi is required to show that he has a clear legal right to the relief that he seeks (in this case the prohibition of his execution by what he claims is an unconstitutional lethal-injection protocol) and that he has no adequate remedy at law. See State ex rel. Wade v. Mays, 689 S.W.2d 893, 897-900 (Tex.Cr.App. 1985). Chi obviously meets this latter requirement, since he has no right to present his Eighth Amendment claim by way of appeal or habeas corpus application under Article 11.071. The issue, therefore, is whether Chi has a clear right to the relief that he seeks. See Wade, 689 S.W.2d at 897 (entitlement to writ of prohibition must be shown to be “clear and indisputable,” or “unequivocal,” or “abundantly clear”) and at 898 n. 11 (party seeking writ of prohibition “must make a clear showing that under certain facts, the law is subject to but one interpretation; he then must show that undisputed facts exist which entitle him unequivocally to a right flowing from that single interpretation”).1

Chi’s petition for writ of prohibition is predicated on the United States Supreme Court’s decision in Baze v. Rees, 553 U.S. -, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).2 In Baze, the United States Supreme Court by a 7-2 vote upheld Kentucky’s lethal-injection protocol, which is materially indistinguishable from Texas’ lethal-injection protocol.3 In addition, like *704the petitioners in Baze, Chi’s principal claim in this proceeding is “the risk of pain from maladministration of a concededly humane lethal injection protocol.”4 And, like the petitioners in Baze, Chi’s maladministration claim focuses on the possibility that the first drug in the lethal-injection protocol, sodium thiopental (also known as Pentathol), will not be properly administered.5 The United States Supreme Court in Baze clearly and unambiguously upheld Kentucky’s lethal-injection protocol. See Baze, 128 S.Ct. at 1533-1534 (Kentucky’s lethal-injection protocol does not create substantial risk that first drug in the protocol will be improperly administered), and at 23 (“Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, the procedure will result in a painless death. The risks of maladministration they have suggested — such as improper mixing of chemicals and improper setting of IVs by trained and experienced personnel — cannot remotely be characterized as ‘objectively intolerable.’ Kentucky’s decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment.”).6

Chi also points to a possible maladministration of a lethal-injection protocol during an execution of a person named Angel Diaz in Florida. See Chi’s Petition for Writ of Prohibition at 11-14. This, however, is insufficient to establish an Eighth Amendment violation. See Baze, 128 S.Ct. at 1531 (“an isolated mishap alone does not give rise to an Eighth Amendment violation”); O’Brien, 190 S.W.3d at 682 (Cochran, J., concurring) (“Courts cannot judge the lethal injection protocol based solely on speculation as to problems or mistakes that might occur”) (emphasis in original).

Concluding that Chi’s Eighth Amendment claim has no merit, we decide that Chi cannot establish that he has a clear right to the relief that he requests. Chi’s petition for writ of prohibition is denied and his stay of execution is lifted.

filed a concurring opinion in which WOMACK, J., joined.

I agree that applicant is not entitled to relief on either his application for a writ of habeas corpus or his petition for a writ of prohibition because he has not made a prima facie showing of a constitutional violation. I believe that applicant’s writ application could be recharacterized by this Court as an original writ under the Texas Constitution.1 Regardless, further factual *705development by this applicant under this particular pleading could not result in any relief because he has not made a sufficient showing of any constitutional violation. He has pled facts, and offered evidence of those pleaded facts, that bring him within the ambit of the majority decision in Baze v. Rees,2 and our prior decision in Ex parte O’Brien.3 Furthermore, we have received a post-Raze supplemental response from the Texas Department of Criminal Justice (TDCJ) that graphically demonstrates the similarities between the Texas lethal-injection protocol and that of Kentucky which was upheld by the United States Supreme Court in Baze4 TDCJ’s comparison is based primarily upon data in the TDCJ Execution Procedural Manual which was attached to applicant’s Petition for Writ of Prohibition.5 Thus, the underlying data *706that negates applicant’s claim of a constitutional violation was supplied by applicant himself. Furthermore, applicant, like the petitioner in Baze, fails to articulate a readily implemented and feasible alternative to the Texas lethal-injection protocol such that the failure to implement that new, significantly superior procedure might constitute cruel and unusual punishment.6 Finally, applicant discusses the “botched” execution of Angel Diaz in Florida as some evidence that the same could happen to him. But Texas is not Florida, and applicant has failed to show that any lethal-injection execution in Texas has presented the same problems as that in the Diaz case. At any rate, “an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a ‘substantial risk of serious harm.’ ”7

Therefore, I agree that we must dismiss the present application for a writ of habeas corpus and the petition for writ of prohibition because neither one sets out a prima facie showing of a constitutional violation.