The opinion
CLINTON, Judge,
concurring.
Recognizing and acknowledging that the Court is being prudently cautious in granting a stay of execution, albeit for the limited purpose of awaiting the resolution of Johnson v. Texas, I would extend the stay to reconsider our prior disposition of two grounds previously advanced by applicant, viz: ground 1 in his “02” application alleging ineffective assistance of counsel by failing to develop or present evidence in his defense, or to submit the prosecution’s evidence to any meaningful adversarial testing at trial, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States, and in violation of Article I, § 10 of the Constitution of the State of Texas; ground 3 in his “03” application to the effect that this Court should decide “what procedures are necessary to enforce the existing Federal constitutional prohibition on executing the innocent.” Neither ground was presented on direct appeal, and manifestly each is of serious significant import — certainly to this applicant as well as others similarly situated.
Judge Maloney considers one aspect of the latter ground in his separate opinion only to find “the process of seeking executive clemency is inadequate for testing the credibility of newly discovered evidence of innocence due to the lack of formal procedures controlling its use.” Opinion, at 568, and see at 569. In my judgment, such a conclusion is not yet clearly supported by the record before us or by “legislative facts” and matters which we may judicially notice.
Moreover, the Board of Pardons and Paroles is a creature of the Constitution, empowered to recommend and advise the Governor as to granting commutations of punishment and pardons, Article IV, § 11, and has itself adopted and promulgated rules of administrative procedure to those same ends. See 37 Texas Administrative Code, Chapter 143, § 143.1 et seq. and Chapter 147, § 147.1 et seq. Should it appear that upon proper application the Board has failed or refused to put its own procedures to work in this cause or, Judge Maloney believes, they are “inadequate” for the task, then it seems to me this Court is duty bound to file and set the cause for determination of the issues thus presented.
The Executive Department is constitutionally required to adopt and follow rules that comport with due process and due course of law. Now that the Supreme Court of the United States has spoken in Herrera v. Collins, — U.S. -, 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993), concerning the role of the executive clemency in providing a forum for testing claims of “actual innocence,” this Court has the power, duty and responsibility to assure that due process and due course requirements are met.
Although I agree with the stated reason for granting a stay of execution, we should enlarge the grant to encompass those grounds identified above. Because the Court does not act to insist that an agency of our government comport with fundamental constitutional expectations, I respectfully concur only with result.
Before the court en banc.
ORDER
PER CURIAM.
This is an application for a writ of habeas corpus transmitted to this Court pursuant to Article 11.07, § 2, et seq., V.A.C.C.P.
*571 On October 28, 1981, Applicant was convicted of capital murder. After the jury-returned affirmative answers to the special issues submitted under Article 37.071, V.A.C.C.P., punishment was assessed at death. Graham v. State, No. 68,916 (Tex. Cr.App. delivered June 12, 1984). On April 27, 1993, this Court denied his application for a writ of habeas corpus with written order. Ex parte Graham, 853 S.W.2d 564 (Tex.Cr.App.1993). Applicant filed a motion requesting reconsideration of our denial. On our own motion we reconsidered our ruling, in part, and refused to consider the merits of all but one of the grounds, that one ground implicating Johnson v. Texas, — U.S. -, 113 S.Ct. 2658 , — L.Ed.2d - (1993). We ordered Applicant’s execution stayed for thirty days. Ex parte Graham, 853 S.W.2d 565 (Tex.Cr.App.1993).
The State has now filed a Motion for Dissolution of the Stay. However, it should be noted that our stay of execution dated June 2, 1993 has expired by its own terms. Thus, the State’s motion is dismissed as moot due to the expiration of our earlier order of June 2, 1993.
Applicant has filed a Motion to Continue the Stay of Execution and for Remand for Evidentiary Hearing on Claim of Ineffective Assistance of Counsel in which claims of ineffectiveness of counsel are made. 1
With regard to Applicant’s motion it is noted that we have no allegation of ineffectiveness of counsel properly pending before us. Such must be presented to the trial court first and transmitted to this Court pursuant to Art. 11.07, supra. Article 11.07 provides the exclusive remedy for final felony convictions in Texas. Ex parte Adams, 768 S.W.2d 281 (Tex.Cr.App.1989). That article requires all claims to first be presented to the trial court and, following a fact finding procedure conducted in that court, to be transferred to this Court. Since Applicant has failed to present these claims to the trial court, they are not properly before us at this time. Accordingly, we will dismiss Applicant’s Motion to Continue Stay and Remand For an Evidentiary Hearing without prejudice to file the claim in the appropriate court.
Applicant’s Motion is, therefore, dismissed without prejudice to file his application in the trial court pursuant to Art. 11.07, § 2, et seq., supra. The State’s Motion for Dissolution of the Stay is dismissed as moot.
. It is noted that Applicant alleged ineffective assistance of counsel in an earlier writ application, an evidentiary hearing was held and this Court denied relief based on the findings of fact and conclusions of law developed as a result of that hearing, at which hearing counsel testified. Ex parte Graham (Tex.Cr.App. No. 17,568-01, delivered February 19, 1988). However, Applicant contends that newly discovered or available evidence relating to counsel’s effectiveness casts doubt on the efficacy of the fact finding process conducted at that time. We express no opinion at this time on Applicant’s contentions given that the trial court is the appropriate forum for the gathering and presentation of factual matters under Article 11.07.