concurring.
Recently, the Supreme Court of the United States confirmed that in Texas, as elsewhere, executive clemency is “the ‘fail-safe’ in our criminal justice system” — “the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” Herrera v. Collins, — U.S. —, at—, —, 113 S.Ct. 853, at 866, 868, 122 L.Ed.2d 203 (1993).1 Today, however, the district attorney of Harris County and the executive department, board and officials, alone authorized to advise and recommend to the Governor whether to exercise her clemency powers and thereby implement the historic “fail-safe” remedy, importune this Court to rescue them from judicial orders relating to discharging their constitutional duties and responsibilities in the premises. See Article IV, § 11, Constitution of the State of Texas.
I
A
Gary Graham was convicted of capital murder in Harris County; this Court affirmed the judgment. Graham v. State, 671 S.W.2d 529 (Tex.Cr.App.1984). Thereafter Graham invoked and pursued available judicial remedies to the Supreme Court and back again.
Thereafter, this Court expressly refused “to reconsider the merits of [certain] *874grounds” advanced by Graham as to “what procedures are necessary to enforce the existing Federal constitutional prohibition on executing the innocent.” Ex parte Graham, 853 S.W.2d 565 (Tex.Cr.App.1993). Finally we denied without prejudice his motion to continue stay of execution and to remand for hearing on his claim of ineffective assistance of counsel during trial. Ex parte Gary Graham, 853 S.W.2d 565, 571 (1993). Thereafter, on July 7, 1993, the judge of the convicting court ordered that the sentence of death be carried out at some hour before sunrise of August 17, 1993; the judge further directed the clerk of court to issue and deliver to the Sheriff of Hams County a death warrant, and in turn that the Sheriff deliver the warrant to the Director of the Institutional Division of the Texas Department of Justice.
B
On July 21, 1993, Graham filed a civil action in a district court of Travis County, viz: Gary Graham v. Texas Board of Pardons and Paroles, et al. After a July 27th hearing, on finding that Defendants “intend to refuse to grant Plaintiff [Gary Graham] a due course of law hearing on his post-conviction claim of innocence or to stay or to recommend to the Governor a stay of Plaintiffs execution, pending a due course of law hearing, as required by the Texas Constitution (Article I, sections 13 and 19 and Article IV, section 11), and thereby intend to allow the execution of Plaintiff to occur on August 17, 1993, before the Court can render judgment in this cause ... and thereby alter the status quo and wholly make not only ineffectual, but impossible, a judgment in favor of Plaintiff ... and that, unless Defendants ... are deterred, restrained and enjoined from carrying out that intention, Plaintiff will be completely without any remedy at all and will suffer death,” the 299th Judicial District Court of Travis Court ordered and commanded Defendants forthwith “to grant Plaintiff a due course of law hearing on his post-conviction claim of innocence consistent with [cited constitutional provisions] on or before August 10, 1993, or, failing that, they are commanded to reschedule such execution until a hearing consistent with [cited constitutional provisions] is held on Plaintiffs post-judgment evidence of his claim of innocence or until judgment in this cause is entered by this Court.” Temporary Injunction at 1-2, granted August 9, 1993.
Defendants wholly failed to comply with any command in such order, presumably on advice of counsel of record. Instead, on the day designated for their initial action the Attorney General of Texas gave notice of appeal to the Court of Appeals for the Third District. His recitation therein that Defendants are exempt from filing a cost bond served automatically to supersede the temporary injunction granted by the trial court. Tex.R.App.Pro 43(a).
On August 13,1993, however, on motion by Graham the Court of Appeals exercised its authority to “issue such temporary orders as it finds necessary to preserve the rights of the parties until disposition of the appeal” taken by the Attorney General. Tex.RApp. Pro. 43(e). It granted a temporary injunction prohibiting the State officials and their agents from executing Graham until final disposition of the appeal from the order of temporary injunction rendered by the trial court.
The District Attorney of Harris County now moves this Court for leave to file a petition for writ of mandamus directed to the Court of Appeals and a request for emergency stay of the temporary injunction pursuant to Tex.R.App.Pro. 121(d), seeking to have this Court overturn the orders of the Court of Appeals to the end that the execution of Graham proceed as scheduled — without according him the due course of law hearing ordered by the court below. The Attorney General of Texas similarly moves for leave to file applications for writ of prohibition and mandamus to vacate the temporary injunction and to prohibit the Court of Appeals from taking any further action in the cause except to dismiss it upon notice that the district court has dismissed the cause pursuant to a holding of this Court; yet, to assume original habeas jurisdiction to address the very clemency issues raised by Graham and thus far decided in his favor.
*875II
As matters now stand the judicial process in his criminal capital murder case has been exhausted. Graham is scheduled for execution at an early hour of Tuesday, August 17. But in a civil case the Court of Appeals has granted and issued a temporary injunction without which his execution would have been accomplished.
The Court of Appeals acquired jurisdiction over the proceeding when the Attorney General of Texas filed notice of appeal on behalf of his clients. It found that to carry out the execution as scheduled “would affect the parties’ rights pending the disposition of the appeal from the district-court order of injunction and would destroy the subject matter of the lawsuit.” Slip opinion, at 3. The subject matter implicates the right of Graham and the corollary duty of the Board of Pardons and Paroles to grant and hold “a due course of law hearing on his post-conviction claim of innocence.”
Contrary to assertions now made by Rela-tors, the civil action designed to obtain the “historic ‘fail-safe’ remedy” of executive clemency does not impermissibly “invade” the exclusive post-conviction jurisdiction of this Court under Article 11.07, V.A.C.C.P., and does not improperly “interfere” with the order of the trial court setting a date for execution. In both instances the criminal judicial process has been “exhausted,” Herrera v. Collins, supra, evidenced by the fact that Graham will surely be executed if the temporary injunction is set aside.
The Legislature of this State has long explicitly recognized and acknowledged that should a condemned person “be pardoned or his sentenced commuted by the Governor, no execution shall be had.” Article 43.23, V.A.C.C.P. Due course of law certainly requires that such a condemned person desperately seeking executive clemency not be executed on the simple expediency that the State officials responsible for fairly considering his plea have refused to hear it.
For those reasons I join in denying the respective motions for leave to file.
. All emphasis is supplied throughout by this writer unless otherwise indicated.