The Texas Court of Criminal Appeals in Ex parte John Alba ordered the following:
We must consider whether a claim that the execution chemical protocol may violate the constitutional rights of the condemned is cognizable in a writ of habeas corpus. Before making the decision in this case, we invite, applicant, the State, and the Texas Department of Criminal Justice to present their positions on the following question: Is a claim that the lethal-injection protocol violates the Eighth Amendment cognizable under Article 11.071 of the Texas Code of Criminal Procedure?
All briefs on these issues should be delivered to this Court within 60 days from the date of this order.
IT IS SO ORDERED THIS THE 20th DAY OF September, 2006.
It remains to be seen whether this order will result in a temporary halt to executions in Texas.
The more important question in Texas is not whether the method of execution is constitutional, but whether Texas has executed innocent people, such as Ruben Cantu, Carlos De Luna and Cameron Todd Willingham.
Thanks to Capital Defense Weekly for spotting this.