concurring in part and dissenting in part.
I.
I agree with the majority that we should sustain relators’ first, second, and third contentions, and find relators are entitled to a writ of mandamus to compel the vacation of respondent’s injunction. I believe respondent does not have the jurisdiction to enjoin the execution of Gary Graham, which would be an unlawful interference with the mandate of this Court. To decide otherwise, would be the dangerous precedent of permitting lower courts to interfere with the mandates of this Court whenever they perceive it to be necessary in a civil lawsuit. I therefore join Parts I and II of the majority opinion.
This does not mean that I believe the District Court lacked jurisdiction to hear Gary Graham’s claim: that the Board of Pardons and Paroles violated his right to due course of law by denying his request for executive clemency without permitting him a hearing to present his request. I believe this question into the constitutional viability of the procedures followed by the Board is a matter of civil law. Our State’s executive clemency provisions do not constitute another step in the appellate review of a criminal conviction. These provisions do not provide a venue to contest the validity or integrity of a criminal conviction. They involve the issuance of orders pursuant to civil statutes, not criminal statutes. Compare with Curry v. Wilson, 853 S.W.2d 40, at 43 (Tex.Cr.App.1993). I believe that is a matter to be resolved in courts with jurisdiction over matters of civil law.
However, I think they are an important safeguard and remedy against the wrongful punishment of an individual who is actually innocent.
II.
Because I also believe that the State’s executive clemency procedures are the only state remedy available to an inmate who advances a claim of actual innocence after his conviction is final, I disagree with the majority’s holding that Graham is entitled to pursue his claim of actual innocence through this state’s habeas procedures. As the Supreme Court explained in Herrera v. Collins, — U.S. —, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), clemency is the traditional state remedy for these claims.
In Herrera, the Court found the proper avenue for a claim of newly discovered evidence of innocence was executive clemency procedures, as it “is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” Herrera v. Collins, — U.S. at—, 113 S.Ct. at 866. The Court determined that the procedures set up by the Texas Legislature for executive clemency in this State were a sufficient remedy for the claim advanced by Herrera. “History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.” Herrera v. Collins, — U.S. at—, 113 S.Ct. at 869.
In its opinion, the Court points out that “a truly persuasive demonstration of actual innocence made after trial would render the execution of a defendant unconstitutional.” Herrera v. Collins, — U.S. at —, 113 S.Ct. at 869. If there “were no state avenue open to process such a claim,” federal habeas relief would be warranted. Id. Yet, even though they held that Texas’ executive clemency procedures were an adequate remedy to process a claim of actual innocence, the Court reviewed the merits of Herrera’s claim by assuming, arguendo, that Herrera had advanced such a constitutional claim. Herrera, — U.S. at ——, 113 S.Ct. at 870.
After assuming for the sake of the argument that Herrera had advanced a bona fide claim under the Fourteenth Amendment, the Court reviewed the evidence which Herrera brought forward and concluded that his showing of innocence fell “far short of that which would trigger the sort of constitutional *402claim which we have assumed, arguendo, to exist.” Herrera, — U.S., at— - —, 113 S.Ct., at 869-870. The Court relied on the protections of the Due Process Clause in reaching this decision.
Today, the majority acts to create another, and, in my view, unnecessary and dangerous, remedy for claims like Herrera and Graham’s within our state. It creates this remedy in our state habeas system. In order to do this, the majority assumes that Graham’s claim is the same as Herrera’s claim: that his execution would violate the Due Process Clause of the Fourteenth Amendment.1 The majority then holds that state habeas corpus “is an appropriate vehicle for Graham to assert his claim.” I do not believe that we should add a layer of protection for Fourteenth Amendment claims between this state’s executive clemency procedures and the federal habeas system.2
To reach their conclusion, the majority views Graham’s claim to be a demonstration of “his innocence of the crime for which he was condemned.” Instead, I would hold Graham’s claim of “innocence” to be nothing more than window dressing over a claim that is actually a claim of “newly discovered evidence.” Graham has assembled what he believes to be new evidence in support of his alibi and in support of his claim that another individual committed the capital murder for which he was convicted. Actual innocence is merely the conclusion which he hopes a tribunal will reach upon review of his “newly discovered evidence.”
Graham readily admits that a claim of newly discovered evidence, as this Court ruled in Ex Parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983), is not a fit subject for the exercise of state habeas corpus powers. Binder, at 106. I believe these claims do not involve challenges to the legality of the proceedings in which the claimants were conviet-ed, or challenges to the constitutionality of those proceedings which produced those convictions. Binder, at 106. I would hold they are not properly advanced in state habeas proceedings. •
I draw more support for my argument that Graham’s claim is not suitable for state habe-as from this Court’s previous discussions of the nature of a claim of “newly discovered evidence.” In Drew v. State, 743 S.W.2d 207 (Tex.Cr.App.1987), this Court decided that a claim of newly discovered evidence will prevail only if, “The materiality of the evidence is such as would probably bring about a different result in another trial.” Drew v. State, at 226; and cases cited therein. Essentially, a reviewing court is asking whether or not the newly discovered evidence would contribute enough to a jury’s deliberations that they would reach a different verdict.
I do not mean to imply that deciding the materiality of newly discovered evidence is the same thing as harmless error analysis. I do believe the two processes are substantively similar, since the objective is to decide whether a result of a trial would have been different if the newly discovered evidence would have been admitted there, or if the error’s contribution to the verdict at trial had not occurred. We have held that state constitutional error that is subject to harmless error analysis is not cognizable on a writ of habeas corpus, because it would, at best, render a conviction voidable. Ex Parte Dutchover, 779 S.W.2d 76, at 77 (Tex.Cr.App.1989). Even if Graham’s claim is a federal constitutional claim, and if his newly discovered evidence is sufficiently material, it would still not render his conviction void. At best, that conviction would be voidable, dependent on the materiality of the newly discovered evidence.
I believe that, because a claim such as that of Graham does not challenge the legality of *403the proceeding in which he was convicted or the constitutionality of the proceedings which resulted in his conviction, and because his challenge would not only render that conviction voidable, Graham’s claim does not represent an issue that is cognizable on state habeas.
After the majority assumed that Graham’s Fourteenth Amendment rights were violated in the instant cause (an assumption I cannot agree with), the majority holds that Ex Parte Bravo, 702 S.W.2d 189 (Tex.Cr.App.1982) (on rehearing) controls. In my view, Bravo is substantively different from the instant cause. Bravo dealt with a case wherein veniremembers were improperly excluded, thereby violating the Sixth and Fourteenth Amendments of the United States Constitution. Bravo, at 192-193. This represented a claim of constitutional dimension addressing the proceedings (specifically, the selection of the jury) in which the claimant was convicted, and was properly raised in a writ of habeas corpus. Bravo, Id. As such, I believe Bravo is distinguishable from the instant cause.
I do not agree with the majority that our state habeas system is the proper vehicle to advance a Fourteenth Amendment claim of actual innocence. I do not agree that Graham’s execution without first being granted a habeas corpus forum in this State’s courts would be violative of the Fourteenth Amendment. The Federal habeas system, as decided by the Supreme Court, is sufficient to handle such claims if they are not first resolved in the State’s executive clemency process. As Judge Clinton pointed out in his concurring opinion in Ex Parte Dutchover, 779 S.W.2d, at 78, this Court is certainly “not beholden to the federal courts” to review federal constitutional claims on collateral attack. In light of the Supreme Court’s reliance on this state’s executive clemency procedures as the proper avenue for an inmate’s claims of actual innocence, I believe it is neither necessary, nor very wise, to open up the state habeas system for such claims. I would hold that Binder controls the instant cause.
Lastly, I believe the decision of the majority is potentially dangerous. It is possible that advocates before this Court will use the majority’s decision today as a crowbar to open the door to a state forum in our trial courts for every inmate to relitigate his conviction years after he or she has already enjoyed every protection our criminal justice system extends to those individuals who were, at one time, presumptively innocent.
A decision to deny Graham a state habeas avenue for his claim of actual innocence would not cut him off from pursuing that claim. In a case such as his, where the State Board of Pardons and Paroles summarily denied his request for executive clemency, the state avenues which the Supreme Court spoke of in Herrera would have been exhausted. Under Herrera, and pursuant to the Fourteenth Amendment, Graham could have his forum for his claim that he is actually innocent under federal habeas relief prior to his execution, without the benefit of a state district court injunction of that mandate. If the Legislature finds the Board of Pardons and Paroles needs to have a different procedure for dealing with claims such as Graham’s, they can create one.3 None of this would require this Court to act by giving to Graham an opportunity to pursue his claim in state habeas.
Because I believe there should be no state habeas relief for a Fourteenth Amendment claim of actual innocence, I see no need to recommend a threshold standard for presentation of such a claim, or a burden of proof for resolving that claim.
I respectfully dissent to Parts III, IV, and V of the majority opinion.
For the reasons stated above, I join parts I and II of the majority opinion.
*404OVERSTREET, Judge,concurring in part and dissenting in part.
In this mandamus action we must decide whether the Court of Appeals for the Third District, [hereinafter respondent] in Cause No. 3-93-421-CV, styled Texas Board of Pardons and Paroles, et. al. v. Gary Graham, exceeded its statutory authority by granting injunctive relief, that in effect stayed the execution of Gary Graham [hereinafter Graham]. At issue is the relationship between respondent’s statutory right to preserve the subject matter on appeal pending review of a district court’s decision and this Court’s constitutional and statutory duty as the court of last resort in criminal prosecutions.
I.
On July 21, 1993, Graham filed a civil suit in the 299th District Court of Travis County [hereinafter civil court] seeking an order compelling the Board of Pardons and Paroles [hereinafter Board] to hold a “due course of law” hearing on his request for clemency.1 Specifically, the suit claimed that the procedure employed by the Board in its clemency determinations constitute a denial of due course of law in violation of art. I, §§ 13 and 19,2 and art. IV, § 113 of the Texas Constitution. On August 9, 1993, the civil court entered a temporary injunction and in its order found that Graham was entitled to a “due course of law hearing on his post conviction claim of innocence.”
On August 10, 1993, the Board filed notice of appeal to respondent. On August 12, 1993, this Court entered an order denying leave to file an original mandamus action challenging the civil court’s order brought by the Hams County District Attorney [hereinafter district attorney] because the Board’s notice of appeal suspended the civil court’s order and none of the parties were “presently enjoined from taking any action” including the execution of Graham. On August 12, 1993, Graham filed an “Emergency Motion for Stay of Execution” with respondent. On August 13, 1993, respondent entered a writ of injunction prohibiting the named parties from proceeding with the execution of Graham pending resolution of the appeal.
Respondent determined it had authority to issue such temporary orders as it finds necessary to preserve the rights of the parties until disposition of the appeal. Tex.R.App. Pro. 43(c). Respondent found that the execution of Graham pending disposition of the appeal would affect the parties’ rights pending the disposition of the appeal from the civil court’s order of injunction and would destroy the subject matter of the lawsuit and to do so would interfere with respondent’s jurisdiction over the appeal.
Relators, the Board and the district attorney, sought mandamus relief in this court to set aside the order by respondent.4 We de*405nied leave to file the applications, State ex rel. Holmes v. Third Court of Appeal, 860 S.W.2d 873 (Tex.Cr.App.1993), but on our own motion stayed Graham’s execution. On November 9, 1993, this Court reconsidered the motions requesting mandamus relief, granted leave to file, consolidated the motions and set them for submission. (Clinton, J., Miller, J. and Overstreet J., dissenting).
II.
Appellate review is restricted to those actions and proceedings that are within the appellate court’s jurisdiction. An appellate court has jurisdiction to determine whether it has jurisdiction on its own motion or upon motion of a party to the appeal. 4 Tex.Jur.3d Appellate Review § 25 (1980). Once jurisdiction is invoked, that jurisdiction embraces every thing in the case and every question arising which can be determined in the case, until it reaches its termination and the jurisdiction is thereby exhausted. Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Cr.App.1980).
It is well settled that once a court of appeals acquires jurisdiction of a cause, whether by appeal or by the exercise of its original jurisdiction, it may issue writs of injunction as may be necessary to protect or enforce that jurisdiction. Baird v. Sam Houston Elec. Co-op, 627 S.W.2d 732 (Tex.App. — Houston [1st Dist.] 1982, no writ) (citing City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663 (1924). This power, however, is limited generally to preserving the status quo, and to the protection of the subject matter in order that the case will not become moot. Id. 267 S.W. at 733. If appellate jurisdiction is threatened, a court of appeals’ right to preserve and protect it cannot depend on the adequacy of legal remedies which might be available to the litigants but which are not available to the court.5 Pace v. McEwen, 604 S.W.2d 231 (Tex.Civ.App. — San Antonio 1980, no writ). This Court’s appellate jurisdiction is limited to criminal law matters. Tex. Const, art. V, § 5; Article 4.04, Y.A.C.C.P. We have exclusive appellate jurisdiction to review a capital murder conviction wherein a sentence of death has been assessed. Articles 4.04 § 2 and 4.03, V.A.C.C.P. As the court of last resort in criminal matters, no other state court has authority to override or circumvent this Court’s decisions or disobey its mandates. State ex rel. Wilson v. Briggs, 171 Tex.Crim. 479, 351 S.W.2d 892 (Tex.Cr.App.1961).
Relators rely on our decision in Briggs, supra, for the proposition that respondent exceeded its jurisdiction when respondent enjoined the execution of Graham. Briggs is distinguishable. In Briggs, we issued a writ of prohibition because the relief sought enforced the original jurisdiction of this Court in habeas corpus cases. In Briggs, the judge of the 117th District Court in Nueces County stayed the execution of a capital murderer upon an application for habeas corpus relief. We set aside the stay and denied the habeas application. Thereafter, the trial judge of the convicting court rescheduled the execution date. Applicant presented another eleventh hour habeas corpus application. Again, the judge of the 117th District Court granted a stay. Relator, in that action, petitioned this Court for a writ of prohibition against the judge of the 117th District Court to prevent him from taking any further action or holding any further healings on the application. We granted relief. The 117th District Court was re-litigating by way of habeas corpus applications issues that had already been raised and rejected by this Court in previous habeas applications or on original appeal. We were protecting our original ha-beas corpus jurisdiction rather than exclusive *406appellate jurisdiction to review death penalty cases.
The posture of this case is decidedly different than Briggs. Respondent’s injunction that in effect stayed the execution of Graham was not by way of a habeas corpus application nor was it entered to review previously raised and rejected issues. It was entered in aid of respondent’s appellate jurisdiction and not as an advance determination of the merits of the appeal.
III. '
Mandamus is a drastic remedy to be invoked in extraordinary situations. Perkins v. Court of Appeals, 738 S.W.2d 276, 284 (Tex.Cr.App.1987). In fact, we have said, “A willingness to issue writs of mandamus in less that extraordinary situations would encourage piecemeal litigation and frustrate the efficient administration of justice.” State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Cr.App.1992). In order to be entitled to mandamus relief, the relator must establish two essential requirements: (1) that the act sought to be compelled is ministerial as opposed to discretionary, and (2) no other adequate remedy at law is available. Steames v. Clinton, 780 S.W.2d 216, 219 (Tex.Cr.App.1989).
IV.
Respondent, in response to Graham’s motion for a stay, issued the injunction on the basis that “to proceed with the execution as scheduled would affect the parties’ rights pending the disposition of the appeal ... and would destroy the subject matter of the lawsuit.” Relators contend that respondent had no jurisdiction to issue an injunction which is in effect a stay of Graham’s execution because it usurps the jurisdiction of the convicting court and this Court. Specifically, rela-tors argue that “exclusive jurisdiction to grant a stay of execution or otherwise modify a valid death warrant lies with either the district court which issued the death warrant or the Court of Criminal Appeals.”
At this point it is important to remember the circumstances under which respondent issued the order. Graham sought and received injunctive relief against the Board in a civil suit in district court. Relator Board then filed a notice of appeal, thereby invoking the authority of respondent to decide the interlocutory appeal. The notice of appeal superseded any orders of the civil court and the execution could proceed as scheduled. Under respondent’s reasoning, its order was necessary to preserve the subject matter of the appeal because executing Graham would impermissibly interfere with its jurisdiction over the appeal and render any decision on the propriety of the civil court’s orders moot. Under relators’ reasoning respondent’s order impermissibly interfered with this Court’s exclusive jurisdiction.
V.
Respondent’s discretionary exercise of its statutorily authorized injunctive relief powers in effect stayed the execution of Graham. However, in my opinion such does not imper-missibly interfere with this Court’s exclusive appellate jurisdiction in death penalty cases because it did not and does not address the merits of the capital murder conviction. Respondent issued the injunction for the limited purpose of preserving and protecting its jurisdiction — a right of all courts in this State. Thus, respondent did not exceed its authority by preserving the subject matter of an interlocutory appeal.
I would hold that respondent’s duties herein were discretionary and therefore, find that relators are not entitled to a writ of mandamus to compel the vacation of respondent’s injunction. Because the majority holds otherwise, I dissent to part II of the majority opinion, but join the remainder of that opinion.
. When the instant cause was submitted for oral argument, and Graham’s counsel was permitted to address this Court for respondent, I recall Graham’s counsel arguing his claim solely, and adamantly, in terms of the Texas Constitution and Art. I, § 19.
. It would be appropriate for the State Legislature, if it believes our state’s executive clemency procedures need to be more protective of an inmate’s rights to due process, to change those procedures to ensure that a person such as Graham will get a more adversarial hearing than he received in the instant cause. The majority’s decision wilt increase the burden on our state’s already over-burdened trial courts.
. In response to Judge Campbell’s concurring opinion, I disagree that § 143.2(2) is “unworkable and useless.” If an inmate files a writ with this Court claiming he has "newly discovered evidence” and we deny the writ based upon Ex parte Binder, that denial would be an order of a court having jurisdiction. There would, of course, be no "findings of fact", but under § 143.2(2) those findings are optional. The inmate could take that certified order to the Board then subsection (3) would "kick-in." Whether § 143.2 can be utilized successfully by an inmate is a matter to be resolved by the Legislature.
. Graham presented a request for clemency and/or reprieve from the Board and said request was refused. Graham again presented a request for clemency and/or reprieve and the Board has not acted upon the request.
. Sec. 13 states:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. TEX. CONST, art. I, § 13. .
Sec. 19 states:
No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. TEX. CONST, art. I, § 19.
. Article IV, § 11 provides in part:
The legislature shall by law establish a Board of Pardons and Paroles and shall require it to keep record of its actions and the reasons for its actions....
In all criminal cases, except treason and impeachment, the governor shall have power, and 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. TEX. CONST, art. IV, § 11 (1876, amended 1989).
.The district attorney urged that respondent’s order is unlawful because: (1) the order illegally vacates a previously existing order of a court of equal and competent jurisdiction thereby usurping that court's original jurisdictional authority over Graham's case; and (2) the order violates the original jurisdiction of the Court under Art. V, § 5 Texas Constitution.
The Board urged that respondent’s order is unlawful because: (1) exclusive jurisdiction to *405grant a stay of execution or otherwise modify a valid death warrant lies with either the district court which issued the death warrant or the Court of Criminal Appeals; (2) respondent is procedurally barred from issuing an order that is not coextensive with the limits of its appellate jurisdiction; and (3) a writ of habeas corpus is the only legally cognizable means by which Graham may seek a stay of execution. The Board asks this Court to assume original habeas corpus jurisdiction over this case and respond to the issue raised by Graham.
. Once respondent was vested with jurisdiction to decide the civil court’s order of injunction, Graham could have sought a stay of execution from the 182nd District Court of Harris County or this Court. This remedy of seeking a stay of execution was not available to respondent.