opinion: SELVAGE v. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
  No. 87-6700.
  Argued January 17, 1990
  Decided February 21, 1990
  Richard H. Burr III argued the cause for petitioner. With him on the briefs were Julius L. Chambers, George H. Kendall, and David Cunningham.
  Robert S. Walt, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Jim Mattox, Attorney General, Mary F. Keller, First Assistant Attorney General, Lou McCreary, Executive Assistant Attorney General, and Michael P. Hodge, Dana E. Parker, Andrea L. March, and Don Morehart, Assistant Attorneys General.
  Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
  Briefs of amici curiae were filed for the Harris County Criminal Lawyers Association by Stanley G. Schneider; and for Harvey Earvin by Robert L. McGlasson.
  Per Curiam.
  In March 1988, petitioner sought certiorari to review a decision of the United States Court of Appeals for the Fifth Circuit refusing to stay the execution of his death sentence. We granted a stay of execution, 485 U. S. 983 (1988), and withheld disposition of the petition pending our decision in Penry v. Lynaugh, 492 U. S. 302 (1989). Following that decision we granted certiorari in petitioner’s case to answer this question:
  “At the time petitioner was tried, was there ‘cause’ for not raising a claim based upon arguments later accepted in Penry v. Lynaugh, 492 U. S. 302 (1989), and if not, would the application of a procedural bar to the claim result in a ‘fundamental miscarriage of justice,’ Smith v. Murray, 477 U. S. 527, 537-538 (1986)?” 493 U. S. 888 (1989).
  Petitioner contended in his brief and in his oral argument that his claim for relief based on Penry would no longer be deemed procedurally barred by the Texas Court of Criminal Appeals. The Director of the Texas Department of Criminal Justice, respondent here, disputes that contention.
  Because our decision in Penry was handed down after petitioner’s petition for certiorari was filed, and may have affected the view of the Texas Court of Criminal Appeals on the issue whether petitioner’s claim is presently barred, we think that issue should be decided before we address the question on which we granted certiorari. The Court of Appeals for the Fifth Circuit is more familiar with Texas law than we are, and we therefore vacate the judgment of the Court of Appeals and remand the case to it for determination whether petitioner’s Penry claim is presently procedurally barred under Texas law.
  It is so ordered.
choices: comity: civil rights comity: criminal procedure comity: First Amendment comity: habeas corpus comity: military comity: obscenity comity: privacy comity: miscellaneous comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals assessment of costs or damages: as part of a court order Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules judicial review of administrative agency's or administrative official's actions and procedures mootness (cf. standing to sue: live dispute) venue no merits: writ improvidently granted no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals) no merits: adequate non-federal grounds for decision no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law) no merits: miscellaneous standing to sue: adversary parties standing to sue: direct injury standing to sue: legal injury standing to sue: personal injury standing to sue: justiciable question standing to sue: live dispute standing to sue: parens patriae standing standing to sue: statutory standing standing to sue: private or implied cause of action standing to sue: taxpayer's suit standing to sue: miscellaneous judicial administration: jurisdiction or authority of federal district courts or territorial courts judicial administration: jurisdiction or authority of federal courts of appeals judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753) judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court judicial administration: jurisdiction or authority of the Court of Claims judicial administration: Supreme Court's original jurisdiction judicial administration: review of non-final order judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision) judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question) judicial administration: ancillary or pendent jurisdiction judicial administration: extraordinary relief (e.g., mandamus, injunction) judicial administration: certification (cf. objection to reason for denial of certiorari or appeal) judicial administration: resolution of circuit conflict, or conflict between or among other courts judicial administration: objection to reason for denial of certiorari or appeal judicial administration: collateral estoppel or res judicata judicial administration: interpleader judicial administration: untimely filing judicial administration: Act of State doctrine judicial administration: miscellaneous Supreme Court's certiorari, writ of error, or appeals jurisdiction miscellaneous judicial power, especially diversity jurisdiction