MILLER, Judge,
concurring.
Denying these applications so that the Court of Appeals can retain jurisdiction to determine if it has jurisdiction is an idea that, for the sake of comity to the civil side of our Texas docket, has merit. However I perceive a deeper problem within our system that is highlighted by this case. Wishing resolution of that problem, I join in the vote to deny the applications presently before us.
Applicant Graham’s claim, in the Court of Appeals, highlights a distressing issue in criminal jurisprudence, viz: the execution of a person who may be innocent of the crime for which he was convicted and sentenced to death. The United States Supreme Court has recently addressed this issue and offers some guidance on applicant’s claim, which I discuss below. My real concern in this ease, and the reason for which I write, is to address whether applicant has a viable means by which to raise his claim and have it heard, notwithstanding the merits of his claim.
BACKGROUND: HERRERA v. COLLINS
In Herrera v. Collins, — U.S.—, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the Supreme Court addressed the issue of whether a claim of actual innocence entitled a petitioner to federal habeas relief. Herrera urged in his petition that he was “actually innocent” of the murder for which he was sentenced to death, and that the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process of law forbade his execution. The Court concluded his claim did not entitle him to relief. The Court evaluated Herrera’s claim in light of the previous ten years of proceedings in his case because the “evidence upon which petitioner’s claim of innocence rests was not produced at his trial, but rather eight years later.” Id. at p. -, 113 S.Ct. at p. 859. The history of proceedings in Herrera’s case is as follows.
Herrera was found guilty of the capital murder of a police officer and sentenced to death in January 1982. His conviction and sentence were affirmed on appeal to this [876]*876Court in Herrera v. State, 682 S.W.2d 313 (Tex.Crim.App.1984), and the Supreme Court denied certiorari in 1985. See 471 U.S. 1131, 105 S.Ct. 2665, 86 L.Ed.2d 282 (1985). Herrera’s application for state habeas corpus relief was denied by this Court in an unpublished opinion. Ex parte Herrera, No. 12,-848-02, (Tex.Crim.App., delivered August 2, 1985). Subsequently Herrera sought federal habeas relief on the basis of the identifications offered against him at trial. This relief was denied in Herrera v. Collins, 904 F.2d 944 (5th Cir.1990), and the Supreme Court again denied certiorari. See 498 U.S. 925, 111 S.Ct. 307,112 L.Ed.2d 260 (1990). Herrera then filed a second habeas petition in state court raising inter alia a claim of “actual innocence” based on newly discovered evidence. He filed affidavits in support of this claim. The district court denied relief, and this Court affirmed that decision. Ex parte Herrera, 819 S.W.2d 528 (Tex.Crim.App.1991).1 The Supreme Court again denied certiorari. Herrera v. Texas, 502 U.S.-, 112 S.Ct. 1074, 117 L.Ed.2d 279 (1992).
In February 1992, Herrera filed a second habeas petition in federal court alleging among other things that he was innocent of the murders for which he was convicted and hence executing him would violate the Eighth and Fourteenth Amendments. This claim was resolved against him by the High Court in Herrera v. Collins, the subject of this discussion. The Court noted that “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” 2 — U.S. at-, 113 S.Ct. at 860. The rule ensures individuals are not imprisoned unconstitutionally; its purpose is not to correct errors of fact. Id. at-, 113 S.Ct. at 860. Herrera had been afforded a fair trial in this cause, and thus his constitutional presumption of innocence disappeared. The Supreme Court stated that Texas’ refusal to entertain Herrera’s newly discovered evidence eight years after his conviction did not transgress a principle of fundamental fairness. Id. at-, 113 S.Ct. at 867. Herrera’s only forum for relief was the executive power of clemency.3
CLEMENCY POWER IN TEXAS
Article 4, § 11 of the Texas Constitution vests the governor with the clemency power. Pursuant to that same Constitutional provision the Legislature created the Board of Pardons and Paroles to assist the governor in the exercise of this power. Section 11 provides in pertinent part:
(b) In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons; and under such rules as the Legislature may prescribe, and upon the "written recommendation and advice of a majority of the Board of Pardons and Paroles, he shall have the power to remit fines and forfei[877]*877tures. The Governor shall have the power to grant one reprieve in any capital case for a period not to exceed thirty (30) days; and he shall have power to revoke conditional pardons. With the advice and consent of the Legislature, he may grant reprieves, commutations of punishment and pardons in cases of treason.
The procedures for obtaining clemency are addressed under Chapter 143 in Title 37 of the Texas Administrative Code.
Section 143.2 provides for pardons based on innocence. The Board of Pardons and Paroles will “only consider” applications for recommendation to the governor for full pardon upon receipt of:
(1) a written unanimous recommendation of the current trial officials of the court of conviction; and/or
(2) a certified order or judgment of a court having jurisdiction accompanied by certified copy of the findings of fact (if any); and
(3) affidavits of witnesses upon which the finding of innocence is based.
Section 143.6 provides, however, that a full pardon will hot be considered for an inmate while in prison, except when exceptional circumstances exist.4 These two sections are most pertinent to Graham’s claim for relief.5
Graham claims he is actually innocent of the crime for which he has been sentenced to death. Traditional routes of appellate review have thus far provided no relief. Consequently, the only apparent available avenue for him is to pursue a full pardon under § 143.2. Pursuant to this section, Graham may apply to the Board of Pardons and Paroles (hereinafter the Board) for a recommendation to the governor for full pardon, but as previously set out, the Board will only consider such applications upon the receipt of two or three items: a written recommendation from the current trial officials of the convicting court, and/or
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MILLER, Judge,
concurring.
Denying these applications so that the Court of Appeals can retain jurisdiction to determine if it has jurisdiction is an idea that, for the sake of comity to the civil side of our Texas docket, has merit. However I perceive a deeper problem within our system that is highlighted by this case. Wishing resolution of that problem, I join in the vote to deny the applications presently before us.
Applicant Graham’s claim, in the Court of Appeals, highlights a distressing issue in criminal jurisprudence, viz: the execution of a person who may be innocent of the crime for which he was convicted and sentenced to death. The United States Supreme Court has recently addressed this issue and offers some guidance on applicant’s claim, which I discuss below. My real concern in this ease, and the reason for which I write, is to address whether applicant has a viable means by which to raise his claim and have it heard, notwithstanding the merits of his claim.
BACKGROUND: HERRERA v. COLLINS
In Herrera v. Collins, — U.S.—, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the Supreme Court addressed the issue of whether a claim of actual innocence entitled a petitioner to federal habeas relief. Herrera urged in his petition that he was “actually innocent” of the murder for which he was sentenced to death, and that the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process of law forbade his execution. The Court concluded his claim did not entitle him to relief. The Court evaluated Herrera’s claim in light of the previous ten years of proceedings in his case because the “evidence upon which petitioner’s claim of innocence rests was not produced at his trial, but rather eight years later.” Id. at p. -, 113 S.Ct. at p. 859. The history of proceedings in Herrera’s case is as follows.
Herrera was found guilty of the capital murder of a police officer and sentenced to death in January 1982. His conviction and sentence were affirmed on appeal to this [876]*876Court in Herrera v. State, 682 S.W.2d 313 (Tex.Crim.App.1984), and the Supreme Court denied certiorari in 1985. See 471 U.S. 1131, 105 S.Ct. 2665, 86 L.Ed.2d 282 (1985). Herrera’s application for state habeas corpus relief was denied by this Court in an unpublished opinion. Ex parte Herrera, No. 12,-848-02, (Tex.Crim.App., delivered August 2, 1985). Subsequently Herrera sought federal habeas relief on the basis of the identifications offered against him at trial. This relief was denied in Herrera v. Collins, 904 F.2d 944 (5th Cir.1990), and the Supreme Court again denied certiorari. See 498 U.S. 925, 111 S.Ct. 307,112 L.Ed.2d 260 (1990). Herrera then filed a second habeas petition in state court raising inter alia a claim of “actual innocence” based on newly discovered evidence. He filed affidavits in support of this claim. The district court denied relief, and this Court affirmed that decision. Ex parte Herrera, 819 S.W.2d 528 (Tex.Crim.App.1991).1 The Supreme Court again denied certiorari. Herrera v. Texas, 502 U.S.-, 112 S.Ct. 1074, 117 L.Ed.2d 279 (1992).
In February 1992, Herrera filed a second habeas petition in federal court alleging among other things that he was innocent of the murders for which he was convicted and hence executing him would violate the Eighth and Fourteenth Amendments. This claim was resolved against him by the High Court in Herrera v. Collins, the subject of this discussion. The Court noted that “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” 2 — U.S. at-, 113 S.Ct. at 860. The rule ensures individuals are not imprisoned unconstitutionally; its purpose is not to correct errors of fact. Id. at-, 113 S.Ct. at 860. Herrera had been afforded a fair trial in this cause, and thus his constitutional presumption of innocence disappeared. The Supreme Court stated that Texas’ refusal to entertain Herrera’s newly discovered evidence eight years after his conviction did not transgress a principle of fundamental fairness. Id. at-, 113 S.Ct. at 867. Herrera’s only forum for relief was the executive power of clemency.3
CLEMENCY POWER IN TEXAS
Article 4, § 11 of the Texas Constitution vests the governor with the clemency power. Pursuant to that same Constitutional provision the Legislature created the Board of Pardons and Paroles to assist the governor in the exercise of this power. Section 11 provides in pertinent part:
(b) In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons; and under such rules as the Legislature may prescribe, and upon the "written recommendation and advice of a majority of the Board of Pardons and Paroles, he shall have the power to remit fines and forfei[877]*877tures. The Governor shall have the power to grant one reprieve in any capital case for a period not to exceed thirty (30) days; and he shall have power to revoke conditional pardons. With the advice and consent of the Legislature, he may grant reprieves, commutations of punishment and pardons in cases of treason.
The procedures for obtaining clemency are addressed under Chapter 143 in Title 37 of the Texas Administrative Code.
Section 143.2 provides for pardons based on innocence. The Board of Pardons and Paroles will “only consider” applications for recommendation to the governor for full pardon upon receipt of:
(1) a written unanimous recommendation of the current trial officials of the court of conviction; and/or
(2) a certified order or judgment of a court having jurisdiction accompanied by certified copy of the findings of fact (if any); and
(3) affidavits of witnesses upon which the finding of innocence is based.
Section 143.6 provides, however, that a full pardon will hot be considered for an inmate while in prison, except when exceptional circumstances exist.4 These two sections are most pertinent to Graham’s claim for relief.5
Graham claims he is actually innocent of the crime for which he has been sentenced to death. Traditional routes of appellate review have thus far provided no relief. Consequently, the only apparent available avenue for him is to pursue a full pardon under § 143.2. Pursuant to this section, Graham may apply to the Board of Pardons and Paroles (hereinafter the Board) for a recommendation to the governor for full pardon, but as previously set out, the Board will only consider such applications upon the receipt of two or three items: a written recommendation from the current trial officials of the convicting court, and/or a certified order accompanied by findings of fact, and affidavits from witnesses “upon which the finding of innocence is based.” Query: how does Graham get access to these documents? From what are these documents generated? The language, “finding of innocence,” suggests to me that a hearing on the claim of actual innocence must have been held at some time prior to the filing of the application seeking to institute the governor’s clemency power. Hence, the real issue which needs to be addressed, in my mind at least, is one of procedural due process,6 viz: does Texas provide a procedure by which a condemned person may institute consideration of his innocence claim by the Board of Pardons and Paroles?
THE STATE’S CONTENTIONS
The State’s response to Graham’s efforts to obtain a hearing and recommendation for clemency from the Board of Pardons and Paroles is essentially that the Board has the authority to hear Graham’s case, but in its discretion has decided not to have a hearing on his claim of actual innocence. This hearing that the State refers to is not the hearing which the clemency statute seems to contemplate, and is not the hearing Graham so desperately needs at this point. From my reading of § 143.2, Graham may not even have his claim considered in a hearing by the Board until it receives the necessary documents listed in § 143.2. The State must demonstrate to the Court the import of the provisions in § 143.2 and that it (the State) provides Graham a vehicle by which he can [878]*878obtain the documents required by that section. If there is no procedure in place by which Graham may satisfy the prerequisites to a hearing in § 143.2, then he may indeed be denied his process due. For the Board will “only consider” his application upon its receipt of the written materials specified in § 143.2. This of course assumes Graham can make the necessary initial showing of actual innocence to trigger the relief process.
THE THRESHOLD SHOWING
In Herrera v. Collins, the Supreme Court discussed the effect on the justice system of entertaining claims of innocence. Triggering relief in this instance requires the claimant, Graham, places on him an extraordinarily high burden to meet. The Supreme Court required a high threshold showing of innocence because of the “very disruptive effect” that entertaining claims of actual innocence would have on the need for finality in capital cases and the enormous burden that having to retry cases with stale evidence would put on the State. Herrera v. Collins, — U.S. at —, 113 S.Ct. at 869.
The Supreme Court did not explicate the precise threshold showing, but only noted it was an extraordinarily high one and that Herrera’s evidence of his innocence fell short of this threshold. His affidavits were made without benefit of cross-examination, largely consisted of hearsay, were produced eight years after his trial and after the death of the alleged perpetrator, lack any explanation for the eight year delay or why he pled guilty to another closely connected murder, contained inconsistencies, and did not overcome the State’s proof at trial. We may use Herrera v. Collins as a guideline in Graham’s case.
We at least know that Graham’s evidence to support his claim of innocence must be more than that presented by Herrera, although each case will turn on its facts. Whether Graham has the necessary quantum of evidence to meet the threshold showing is not presently the issue before this Court, and I express no opinion on that. What is of utmost importance is that if Graham can meet the threshold showing (whatever that may be), the State of Texas provides a vehicle by which his evidence may be heard and a finding may be rendered regarding his claim of innocence. As I have expressed, if there is no vehicle then there is no due process for Graham.
CONCLUSION
Whatever the merits of Graham’s claim, his case has raised an important issue for Texas criminal jurisprudence, to-wit: does Texas protect a convicted felon’s due process rights by providing a procedure by which he can invoke the clemency process? Until the State proves that it does, in a manner that complies with Supreme Court dictates, I concur in the Court’s decision to deny the motions.