dissenting.
This is an original mandamus action filed on behalf of the State of Texas by the Attorney General and the District Attorney of Harris County (relators). Relators request this Court to issue a writ of mandamus directing the Third Court of Appeals (respondent) to vacate its order granting a temporary injunction in Cause No. 3-93-421-CV, Texas Board of Pardons and Paroles, et al. v. Graham. The order in question purports to grant death row inmate Gary Graham a stay of execution.
The question presented for this Court’s determination is whether relators have demonstrated a basis for mandamus relief. I believe they have. Therefore, I dissent from the majority’s refusal to issue the writ.
The Relevant Facts
On October 28, 1981, in the 182nd District Court of Harris County, Gary Graham was convicted of capital murder and sentenced to death. See Tex.Penal Code § 19.03(a)(2). On June 13, 1984, we affirmed Graham’s conviction. Graham v. State, 671 S.W.2d 529 (Tex.Cr.App.1984). Pursuant to this Court’s mandate, the convicting court, on July 7, 1993, ordered Graham’s execution to be carried out on or before sunrise on August 17, 1993.
On July 21, 1993, Graham filed a petition for declaratory, injunctive, and mandamus relief in the 299th District Court of Travis County. The defendants named in Graham’s pleadings were the Texas Board of Pardons and Paroles (“the Board”), the members of the Board, and the Texas Department of Criminal Justice (“the Department”). Graham contended in his pleadings that the Board’s refusal to grant him a full-blown, trial-like hearing on his application for executive clemency denied him due course of law as guaranteed by Article I, §§ 13 & 19 of the Texas Constitution.1
On August 9, 1993, the 299th District Court issued a temporary injunction directing the Board and the Department, in pertinent part, to grant Graham the requested hearing by August 10, 1993, or, failing that, to reschedule Graham’s execution until a hearing was held or until the district court rendered a final judgment in the cause.
No hearing was held before the Board on Graham’s clemency request on August 10, 1993. Nor was Graham’s execution date rescheduled. Rather, on August 10, 1993, the Board, through its counsel of record, the Attorney General, gave notice of appeal, to the Third Court of Appeals, from the 299th .District Court’s order granting a temporary injunction. Because the Board is exempt from posting a cost bond, the notice of appeal automatically suspended the district court’s order of injunction. See Tex.Civ.Prac. & Rem.Code § 6.001; Tex.R.App.Proc. 43(a).
On August 12,1993, Graham filed a motion in the Third Court of Appeals requesting a stay of execution. On August 13, 1993, the court of appeals enjoined the Department from proceeding with Graham’s execution until that court’s final disposition of the appeal.
Relators now urge that the court of appeals acted beyond its jurisdiction in entering the complained-of order. They further urge *880that if Graham desires a stay of execution, his exclusive remedy is filing an application for writ of habeas corpus in the convicting court pursuant to Article 11.07 of the Texas Code of Criminal Procedure.
Propriety of Mandamus Relief
Mandamus relief is available when a relator establishes that he has no other adequate legal remedy and that the action he seeks to compel is ministerial. Buntion v. Harmon, 827 S.W.2d 945, 947 (Tex.Cr.App.1992); Braxton v. Dunn, 803 S.W.2d 318, 320 (Tex.Cr.App.1991). Here, relators have carried that burden.
Exclusive jurisdiction to grant a stay of execution or otherwise modify a valid death warrant lies with the convicting court and with this Court. State ex rel. Wilson v. Briggs, 171 Tex.Crim. 479, 351 S.W.2d 892 (1961). The 182nd District Court has had jurisdiction over the capital murder prosecution of Graham since the cause was originally filed more than a decade ago. On July 7, 1993, that court, acting pursuant to this Court’s mandate, issued its second order for Graham’s execution. The Third Court of Appeals’ order granting Graham a stay of execution effectively emasculated the 182nd District Court’s order, and this Court’s mandate, directing that Graham’s execution go forward. To allow the Third Court of Appeals’ order to stand will only encourage what can fairly be described as constitutional chaos in the near future. “If it be the law in Texas that every district judge [and every court of appeals] must be satisfied before a death sentence may be carried out, and any district judge [or court of appeals] may prevent the execution of such a sentence ..., then this Court is not a court of last resort in criminal matters in this state.” Id. at 896.
An application for writ of habeas corpus, filed pursuant to Article 11.07, is the only legally cognizable means by which Graham may seek a stay of execution. See Tex. R.App.Proe. 233. I would summarily grant relators’ petitions for leave to file and summarily vacate the order of the Third Court of Appeals staying the execution.
WHITE, J., joins.. Graham’s application for executive clemency was based on his claim of newly-discovered evidence of innocence. See Tex.Admin.Code § 143.2. The record reflects that the Board of Pardons and Paroles examined Graham's new evidence, which consisted entirely of affidavits, but the Board refused to recommend clemency to the Governor. See Tex. Const, art. IV, § 11.