dissenting.
In these applications for writs of mandamus and prohibition, relators John B. Holmes, Harris County District Attorney, and the Texas Board of Pardons and Paroles (Board) and Texas Department of Criminal Justice (Department) ask this Court to order the Third Court of Appeals to lift its temporary injunction prohibiting execution of convicted capital murderer Gary Graham. The question presented is whether the court of *407appeals can enjoin Graham’s execution in order to protect the rights of the parties in a civil lawsuit initiated by Graham against the Board and the Department. See Tex.R.App. Pro., Rule 43(c). In that lawsuit Graham alleges the due course of law as guaranteed by the Texas Constitution prohibits his execution absent a clemency hearing before the Board. Because the court of appeals acted within its authority under our appellate rules, and because its action in no way encroaches upon this Court’s jurisdiction, we should deny relief.
I.
This Court affirmed Graham’s capital murder conviction on direct appeal in 1984. See Graham v. State, 671 S.W.2d 529 (Tex.Cr.App.1984). On three occasions Graham has petitioned this Court for post-conviction ha-beas corpus relief pursuant to Article 11.07, V.A.C.C.P. On all three occasions we denied the requested relief. See Ex parte Graham, 853 S.W.2d 564 (Tex.Cr.App.1993). On June 2, 1993, we granted a stay of execution on our own motion, but that stay expired by its own terms 30 days later. The trial court subsequently set Graham’s execution for August 17, 1993.
On July 21, 1993, Graham filed suit in the 299th District Court in Travis County, Judge Pete Lowry presiding, seeking declaratory, mandamus, and injunctive relief. Specifically, Graham sought a declaratory judgment that the Texas Constitution mandates a hearing before the Board to allow him to ventilate newly discovered evidence he alleges proves he is innocent of the capital offense for which he stands to die, as well as injunctive and mandamus relief to prevent his scheduled execution until such time as he should obtain that hearing before the Board. On August 9, Judge Lowry entered an order temporarily enjoining execution unless by August 10 the Board should have held a clemency hearing, according to specifications set out in the order. He set the cause for trial on the merits on August 23, 1993.
The Attorney General filed notice of appeal of this interlocutory matter on behalf of the Board and the Department on August 10, 1993. This had the effect of suspending Judge Lowry’s order granting injunctive relief.1 Accordingly, on August 12, 1993, Graham filed a motion in the court of appeals requesting it to enjoin his scheduled execution pending the interlocutory appeal of Judge Lowry’s decision to grant injunctive relief, in order to preserve the subject matter of the lawsuit. On August 13, the court of appeals granted that request,2 and ordered that the interlocutory appeal be accelerated.
*408Relators first filed their applications for writ of mandamus on August 16, 1993. This Court denied leave to file the applications, State ex rel. Holmes v. Third Court of Appeals, 860 S.W.2d 873 (Tex.Cr.App.1993), but, paradoxically, granted an attendant emergency motion for stay of execution filed by Graham on the same day. That itay remains in place to this day.3 On November 9, 1993, we “reconsidered” our denial of leave to file relators’ applications for writ of mandamus under Tex.R.App.Pro., Rule 211(c), and granted them in an unpublished order. The applications were consolidated, and oral argument was scheduled and heard on December 1, 1993. Applicants pray that we issue a writ of mandamus or prohibition to order the court of appeals to dissolve its injunction against Graham’s execution.
II.
As always in an application for writ of mandamus or prohibition, the threshold question is whether that extraordinary remedy will lie. Since 1978, Article V, § 5 of the Texas Constitution has conferred upon this Court original mandamus and prohibition authority “in criminal law matters[.]” Of course, the Court has also long had “the power to issue such other writs as may be necessary to protect its jurisdiction and enforce its judgments.” Id. It is not entirely clear which of these powers relators are attempting to invoke — our general authority to issue writs “in criminal law matters,” or our ancillary authority to issue writs to protect our jurisdiction. Either way, mandamus does not he.
To begin with, the question whether a court of appeals can issue temporary injunc-tive relief in the protection of its own jurisdiction is hardly “a criminal law matter.” Even if it were, before this Court will exercise its general mandamus power, we look to see whether applicants have an adequate remedy at law, and whether the act they seek to compel or prohibit is either purely ministerial, is to set aside an unauthorized order, or else is the only act discretion will’ allow under the law and the facts. E.g., State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978). Applicants meet none of these criteria. Finally, the Court need not exercise its power to issue writs to protect our own jurisdiction because, so far, the court of appeals has done nothing to compromise either the jurisdiction or any judgment of this Court.
Criminal Law Matters
In order to decide whether applicants are requesting the exercise of our original mandamus power “in criminal law matters,” it is *409necessary to keep a proper perspective. The issue is a narrow one: Did the court of appeals have authority to grant an injunction against the Board and the Department in order to protect the subject matter of the litigation? We must keep in mind that the only matter presently before the court of appeals is an interlocutory appeal. Whether due course of law compels the Board to conduct a clemency hearing is not before this Court or the court of appeals. All that is yet justiciable in the court of appeals is the question whether Judge Lowry had authority to enter an injunctive order to preserve the subject matter of the litigation currently pending in his court. All that is before this Court, in turn, is the question whether the court of appeals acted within its authority to enjoin the execution pending resolution of the interlocutory appeal.
This Court has long recognized that the appropriateness of equitable relief — even the appropriateness of enjoining litigants from violating provisions of the Penal. Code — is peculiarly a civil law question. Ex parte Zuccaro, 72 Tex.Cr.R. 214, 162 S.W. 844 (1913); Ex parte Mussett, 72 Tex.Cr.R. 487, 162 S.W. 846 (1913).4 “[I]t is well settled that equity will interfere when necessary to protect civil or property rights, and the fact that the commission of a statutory offense must be enjoined as an incident to the giving of proper relief will not deprive the court of its jurisdiction in this respect.” 18 Tex. Jur.3rd Criminal Law § 45, at 81 (1982).
Graham filed suit under the Declaratory Judgments Act, Chapter 37 of the Texas Civil Practice and Remedies Code. Section 37.003(a) of the Act provides that “[a] court of record within its jurisdiction has the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”5 Under Article V, § 8 of the Texas Constitution:
“District Court Jurisdiction consists of ... original jurisdiction of all actions, proceedings, and remedies, except in cases where ... original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body. District Court judges shall have the power to issue writs necessary to enforce their jurisdiction.”
Thus, unless “original jurisdiction” over the question whether the Board must conduct a clemency hearing has been “conferred ... on some other court, tribunal, or administrative body[,]” the 299th District Court had original jurisdiction to entertain Graham’s lawsuit. In any event, the district court would have jurisdiction at least to decide whether it had jurisdiction over the action, and to dismiss the petition should it find it does not.
The appellate jurisdiction of the court of appeals extends, in turn, to “all eases of which the District Courts ... have original ... jurisdiction.” Article V, § 6, Texas Constitution. It may be that Judge Lowry mistakenly concluded he had jurisdiction to declare whether the Board must hold a clemen*410cy hearing, and that he therefore had no authority to decide Graham’s petition, much less grant injunctive relief to preserve the subject matter.6 But the court of appeals has jurisdiction to decide whether Judge Lowry erred to assume his court had jurisdiction. See 4 Tex.Jur.3d Appellate Review § 25, at 40-41 (1980); Matlock v. Williams, 281 S.W.2d 229 (Tex.Civ.App. — Beaumont 1955, no writ). Indeed,, in his interlocutory appeal to the court of appeals relator Holmes invokes that court’s appellate jurisdiction to argue that the district court had no jurisdiction over the question of how the Board exercises its clemency function because judicial intervention would violate separation of powers under Article II, § 1, Texas Constitution.7
So far, then, we have an appellate question involving jurisdiction of the lower court to encroach upon an executive function. Obviously Judge Lowry concluded his court had that jurisdiction, and now, in order to decide the interlocutory question whether he could enjoin the Board and the Department, the court of appeals must decide if that conclusion is correct. In the meantime, the court of appeals has issued its own temporary injunction under Tex.RApp.Pro., Rule 43(c), and V.T.C.A. Government Code, § 22.221(a). The “subject of the mandamus litigation” is simply whether the court of appeals somehow exceeded its authority to do so. See Smith v. Flack, 728 S.W.2d 784, at 788 (Tex.Cr.App. 1987). That the court of appeals may be called upon to decide whether Judge Lowry had jurisdiction to decide whether the Board must hold a hearing does not transform the question before this Court — can the court of appeals itself grant injunctive relief to preserve the subject matter of the interlocutory appeal? — into a criminal law matter.
It is perhaps possible to view the “subject of the mandamus litigation” more broadly to encompass the substantive question in the interlocutory appeal, viz: Does the district court have jurisdiction to enjoin Graham’s execution temporarily unless the Board holds a clemency hearing? Simply because the Board’s constitutional clemency powers are reiterated in the Code of Criminal Procedure, Article 48.01, V.A.C.C.P., it might be argued that “a criminal law is the subject of the litigation.” Smith v. Flack, supra.8 But an injunction is an equitable remedy. It is clear enough that the Texas Supreme Court does not consider the. question whether a district court has jurisdiction to grant equitable relief even in what may fairly be described as a criminal law matter itself to be a criminal law matter. In the very recent case of State v. Morales, 869 S.W.2d 941 (Tex.1994), the Supreme Court held that a district court did not have jurisdiction to issue a declaratory judgment that a penal code provision was unconstitutional, and to enjoin prosecution under that provision. The Supreme Court rendered this decision in a writ of error from an appeal to the Third Court of Appeals. But the appellate jurisdiction of the Supreme Court extends “to all eases except in criminal law matters.” Article V, § 3, Texas Constitution. Because the Supreme Court does not have appellate jurisdiction over criminal law matters, it could not have considered the question of the district court’s equity jurisdiction in Morales to have been a criminal law matter and nevertheless entertained a writ of error on that question.9 *411Unless we are to hold that “criminal law matter” under Article V, § 5 means something different than the same language in Article Y, § 3, we cannot now hold that the broader question whether Judge Lowry had equity jurisdiction in this cause is a criminal law matter without contradicting what the Supreme Court did in exercising its appellate jurisdiction in Morales.
No Other Adequate Remedy at Law
In the long run, relators’ remedy on appeal proves no less adequate than any we could give him in the exercise of our general mandamus authority. Either way, Graham cannot be executed until the decision is made whether Judge Lowry’s Court has jurisdiction to determine the issues raised in his petition.
The underlying question whether the district court had jurisdiction to grant a temporary injunction can be decided in due time by the court of appeals.10 Further review up the appellate ladder may or may not be permissible.11 But that is not the subject of the mandamus litigation. The subject of the mandamus litigation is whether the court of appeals lacked authority to grant injunctive relief to preserve the subject matter of the interlocutory appeal. We know of no mechanism by which relators can take the question of the propriety of the court of appeals’ injunction further up the appellate ladder in some interlocutory fashion for discretionary review. Thus, in a very real sense it appears relators have no adequate remedy at law.
Ultimately, however, for this court to grant mandamus relief in this matter proves no more efficacious to relators than waiting for the court of appeals to issue its opinion on the underlying issue of the district court’s jurisdiction. This is so because the only thing that would make the court of appeals’ injunction subject to our mandamus power is that the court of appeals lacked authority to grant it; and the only conceivable reason the court of appeals might have lacked authority is that Judge Lowry lacked jurisdiction over the cause in the first place.12 That is in fact what relators contend here. See text, post. Until such time as we should resolve that question against Graham’s interests, and order the court of appeals to dissolve the injunction, it will remain in place. Moreover, even if the injunction did not remain in place, this Court would surely issue a stay of execution, had it not done so already, in order to protect its own jurisdiction. Either way, Graham cannot be executed for as long as it takes for one forum or the other to decide whether Judge Lowry had jurisdiction over his purported lawsuit.13 It behooves relators nothing to obtain mandamus relief in this Court that simply waiting for the decision of the court of appeals would not behoove them equally well.14
*412 Ministerial Duty
Manifestly, the court of appeals’ decision to grant injunctive relief to protect the subject matter of the litigation was judicial, not ministerial. While this Court may mandamus a lower court to perform some judicial function, it will not ordinarily mandamus the court to perform that function in a particular way or to some particular end. State ex rel. Wade v. Mays, 689 S.W.2d 893 (Tex.Cr.App.1985); State ex rel. Curry v. Gray, 726 S.W.2d 125 (Tex.Cr.App.1987). If under the law and the facts, however, there is only one proper order that can be rendered, this Court will grant mandamus relief. State ex rel. Vance v. Routt, supra; Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980). The question here is whether dismissing its temporary injunction is the only proper course for the court of appeals to take under the circumstances.
Clearly the court of appeals has authority to grant “temporary orders as it finds necessary to preserve the rights of the parties until disposition of the appeal” under Rule 43(c), supra. See also Government Code, § 22.221(a), supra; 16 Tex.Jur.3rd Courts § 83, at 378-380 (1981). Relators do not really argue otherwise. They contend, instead, that any exercise of that authority to grant an injunction against executing Graham amounts to a stay of execution. That, relator Holmes argues, interferes with the jurisdiction of the 182nd District Court in Harris County, in which Graham was convicted, the jurisdiction of this Court, which affirmed that conviction and issued its mandate, and the order of the 182nd District Court setting a date for execution pursuant to that mandate. The Board contends, moreover, that only this Court has authority to decide whether the Board must hold a hearing as a condition precedent to carrying out our mandate, by virtue of Article 11.07, § 3, V.A.C.C.P. Thus relators essentially urge that by enjoining Graham’s execution the court of appeals has usurped the jurisdiction of the convicting court and of this Court.15 I do not agree.
Once this Court’s mandate has issued affirming a capital murder conviction, the convicting court has jurisdiction only to perform the essentially ministerial duties of pronouncing and imposing sentence and setting the execution date. In Graham’s case these duties were carried out. Graham’s lawsuit does not attack the validity of the convicting court’s judgment and sentence, so there is no danger that Judge Lowry or the court of appeals will attempt to set those aside; It is true that the court of appeals’ injunction postponed the execution scheduled for August 17. In so doing, the court of appeals impinged upon the convicting court’s authority to set a specific execution date. Article 43.14, V.A.C.C.P. That amounts to nothing more, however, than a delay in carrying out the judgment and sentence, which is not itself under attack, but instead remains, in the interim, fully in effect.16
*413If Graham’s lawsuit is allowed to proceed, there are any number of possible scenarios that can play out. None interferes with the convicting court’s judgment and sentence, or our mandate thereon. First, the court of appeals could decide Judge Lowry has no jurisdiction to entertain Graham’s lawsuit at all, and hold that his temporary injunction was invalid. Assuming that decision is not overturned on discretionary review or writ of error,17 the trial court is free to set a new execution date. Second, the court of appeals could hold that Lowry’s injunction was valid, and trial on the merits could commence in the district court. Judge Lowry might then rule that due course of law does not require the Board to conduct a clemency hearing.18 Assuming that ruling were to survive the appellate process, again, the convicting court could set a new execution date. A third scenario follows from a final ruling at any level, trial or appellate, that due course of law does in fact require the Board to hold a hearing. The trial court can then set a new execution date, and as long as the Board holds a hearing prior to that date, any decision not to recommend that the Governor grant clemency in spite of whatever evidence Graham may present will result in his execution at the appointed time. Only in the event that the Board responds to Graham’s newly discovered evidence by recommending a pardon or commutation of sentence will the judgment and sentence of death become a nullity. But executive clemency always interferes with the judgment of the judiciary— that is the constitutional prerogative of the executive branch! Article IV, § 11, Texas Constitution. In short, nothing that can come of the lawsuit filed in Judge Lowry’s court will interfere with the ultimate execution of the convicting court’s judgment and sentence, or this Court’s mandate, except insofar as the executive branch may lawfully intervene.
Relators rely heavily upon our opinion in State ex rel. Wilson v. Briggs, 171 Tex.Cr.R.
479, 351 S.W.2d 892 (1961), for the proposition that the district court lacked jurisdiction to enter any order adversely affecting this Court’s appellate mandate. I think Wilson is distinguishable, however. In Wilson this Court issued a writ of prohibition to protect, not its appellate jurisdiction, but its original jurisdiction “in habeas corpus cases.” Id., 351 S.W.2d at 894. A state district court judge, Briggs, granted an eleventh hour stay of execution for a convicted capital murderer, Stickney, and issued a writ of habeas corpus returnable to this Court under former Article 119, C.C.P. (1925), now Article 11.07, supra. This Court denied relief, and lifted the stay. A new execution date was set. At the eleventh hour before the rescheduled execution, Briggs granted another stay, and set a hearing in his courtroom. The Attorney General and the Harris County District Attorney petitioned this Court to issue a writ of prohibition against Judge Briggs to prevent him from interfering further with Stickney’s execution. The Court granted the requested relief “in order to enforce the jurisdiction of this Court[.]” Id., at 896. That holding is premised, however, on the fact that all three grounds upon which Judge Briggs based his final stay of execution had already been raised and rejected by this Court in previous post-conviction habeas corpus proceedings. Id., at 895. In effect, we were acting to protect judgments already rendered in our original habeas corpus jurisdiction from the machinations of a district court judge who felt that we should reconsider them. We were not protecting our appellate jurisdiction. Here, of course, we have rendered no decision, by habeas corpus or otherwise, respecting the question pending in Graham’s lawsuit, viz: whether the Board must hold a clemency hearing. Unlike the case in Wilson, supra, here there is no judgment of this Court in a post-conviction matter for us to protect. Moreover, as I have shown ante, any encroachment upon our appellate mandate is, at best, inconsequential. De minim-is non curat lex.
*414Relators argue, however, that only this Court can decide if the Board must hold a clemency hearing. Section 2 of Article 11.07 makes all post-conviction writs of habeas corpus returnable to this court; section 3 makes the remedy here' an exclusive one. In order to protect the exclusiveness of that remedy, relators maintain, we should prevent the civil side from exercising jurisdiction over the question by issuing the writ of mandamus, on authority of Wilson.19 This is in effect an argument that we should invoke our mandamus power to protect our own jurisdiction, rather than our general mandamus power. I turn to that question next.
Protecting our Jurisdiction
Section 2 of Article 11.07 provides that “[ajfter final conviction in any felony case, the writ must be made returnable to the Court of Criminal Appeals of Texas....” Section 3 reads, “[ajfter conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner.” Because Graham’s conviction is final, relators argue, any remedy to which he is entitled must emanate from this Court by way of post-conviction writ of habeas corpus.
Graham’s lawsuit in Judge Lowry’s court does not, however, attack the validity of his capital murder conviction. Should he prevail, Graham will be neither released from confinement, nor absolved of the death penalty. The judgment and sentence against him in his criminal case will not be affected in any way.20 A declaratory judgment in Graham’s favor would only compel the Board to hold a clemency hearing. It would not dictate a particular outcome to that hearing — indeed, it could not, consonant with principles of separation of powers under Article II, § 1, supra. Only if the Board should exercise its discretion, following such a hearing, to recommend clemency, would there be an invasion of our appellate jurisdiction. And that is a legitimate executive invasion.
For many years we held that habeas corpus is not available to secure a judicial determination of a question that, even if determined in the prisoner’s favor, could not result in his immediate discharge. E.g., Ex parte Ruby, 403 S.W.2d 129 (Tex.Cr.App.1966). A judicial determination that Graham is entitled to a clemency hearing before the Board would not result in his discharge. Therefore, consistent with the holding of eases such as Ruby, habeas corpus would not lie, either under Article 11.07 or otherwise. In short, Article 11.07 would not be an available remedy at all, much less the “exclusive ... proceeding ... in discharging the prisoner.” 21
In recent decades we have retreated from the position that a habeas applicant must seek immediate release or discharge in order for the writ to he. In Ex parte Alegría, 464 S.W.2d 868 (Tex.Cr.App.1971), we allowed an inmate to challenge the ex post facto applica*415tion of a statute postponing parole eligibility in a post-conviction habeas corpus proceeding. We did so even though we acknowledged that Alegría was not seeking “outright release or discharge” and that the decision whether to actually parole an inmate is for the executive branch to make. Id., at 871 & 875. For the proposition that actual discharge is no longer a prerequisite to habeas corpus cognizability, we relied uncritically (as we have been wont to do, see Ex paite Crispen, 777 S.W.2d 103, at 106-110 (Tex.Cr.App.1989) (Clinton, J., concurring)) upon the federal habeas corpus analog. Id., at 871, citing Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); see also Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).22 In many cases since Alegría we have entertained challenges under Article 11.07 to the constitutionality of statutes and regulations adversely impacting parole eligibility, even though the ultimate discretion whether to discharge an eligible inmate on parole remains with the Board. E.g., Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987); Ex parte Rutledge, 741 S.W.2d 460 (Tex.Cr.App.1987); Ex parie Choice, 828 S.W.2d 5 (Tex.Cr.App.1992).23
Simply because we have extended our post-conviction habeas corpus jurisdiction to reach matters that do not involve “discharging the prisoner” does not mean, however, that the exclusiveness of the proceeding under Article 11.07, § 3, is likewise extended. The relevant language of Section 3 was contained in the predecessor to Article 11.07, see Art. 119, supra, when it was originally promulgated in 1943. See Acts 1943, 48th Leg., ch. 233, § 1, p. 355, eff. May 6,1943. At that time the writ of habeas corpus was only available for the purpose of “discharging the prisoner.” Section 3 of Article 11.07 was meant to make habeas corpus returnable to this Court the “exclusive ... proceeding ... in discharging the prisoner” once he had been finally convicted for a felony offense. The Legislature could not have contemplated in 1943 that Article 11.07 should be the exclusive proceeding for accomplishing any other objective than “discharging the prisoner” following final conviction, since at that time no other objective was obtainable at all by habe-as corpus, whether returnable in this Court or not.24 For this reason, if no other, I take *416Section 3 to mean literally what it says, and no more: Article 11.07 is the exclusive proceeding, after a final felony conviction, for discharging the prisoner. See also Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991).
In his lawsuit in Judge Lowry’s court, Graham does not seek a discharge from his confinement or sentence of death. To the extent that Article 11.07 may be an available avenue by which he might obtain a ruling whether the Board must grant him a clemency hearing, he would not, in that context, be seeking a discharge either. It follows that Article 11.07 is not an exclusive proceeding for litigating that question, Section 3 notwithstanding.25
Therefore, to the extent it stands for the proposition that we have mandamus authority to protect our judgments in post-conviction habeas corpus, State ex rel. Wilson v. Briggs, supra, is inapposite here. We have no habeas corpus judgment, nor any exclusive habeas corpus jurisdiction in this matter to protect. Accordingly, we have no call to invoke our mandamus authority against the court of appeals to protect our jurisdiction.
III.
Advisory Opinions
The Board urges us to treat its application for writ of mandamus and prohibition as a habeas corpus proceeding, and to hold that it does not have to afford Graham a clemency hearing. However, the Court has no application for writ of habeas corpus before it. Although district and county courts are authorized to issue a writ of habeas corpus sua sponte, see Article 11.16, Y.A.C.C.P., there is no like provision authorizing sua sponte issu-anee by this Court. Nor should we treat the Board’s application for mandamus and prohibition relief against the court of appeals as a veiled application for writ of habeas corpus on Graham’s behalf. Even if we were to view the Board as a “person” who may present the application of an “applicant” “for him,” the Board is hardly “presenting] a petition” in Graham’s behalf “for the purpose of obtaining relief.” Articles 11.12 & 11.13, V.A.C.C.P. For these reasons we should decline relators’ invitation to reach the questions raised in Graham’s lawsuit on habeas corpus.
Nevertheless, the majority does purport to decide that habeas corpus would lie, under Article 11.07, supra. Strangely, the majority does not decide that the question whether the Board must hold a hearing is cognizable under Article 11.07, supra; instead, it decides that the question whether Graham is actually innocent is. But by the time the majority reaches this question, it has already concluded that mandamus and prohibition relief will be granted. Thus, the conclusion that Graham can raise a claim of actual innocence in a habeas corpus proceeding in this Court is wholly unnecessary to disposition of the applications for writ of mandamus and prohibition. In this respect, the majority opinion is baldly, unabashedly advisory. This Court has no power to issue advisory opinions. See, e.g., Garrett v. State, 749 S.W.2d 784, at 803 (Tex.Cr.App.1988) (Plurality opinion on State’s motion for rehearing); Ex parte Ruiz, 750 S.W.2d 217, at 218 (Tex.Cr.App.1988); Sims v. State, 792 S.W.2d 81, at 82 (Tex.Cr.App.1990); Armstrong v. State, 805 S.W.2d 791, at 794 (Tex.Cr.App.1991).26 *417Moreover, although the majority has ordered the court of appeals to lift its injunction, that court is apparently otherwise free to proceed with relators’ interlocutory appeal. See n. 13, ante. It seems odd for the majority to allow that lawsuit to proceed while suggesting that Graham should raise another claim in another forum.
Because the Court’s opinion is advisory, I refrain from advancing any full-blown opinion on the merits of the question whether habeas corpus would lie for Graham’s claim of actual innocence, if any. However, I am disturbed that the majority’s apparent regard for stare decisis is so slight that it would reach out to upset, to whatever “extent” it is inconsistent with its advisory opinion (I cannot tell), a holding as well established as Ex parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983). Op. at 414.
Impossible Burdens
I am compelled to add one more observation about the advisory portion of the majority’s opinion. In setting the standard that a putative habeas applicant would have to meet to show actual innocence under the Fourteenth Amendment, the majority has given with one hand and taken away with the other. Graham can make out a cognizable claim of actual innocence, says the majority, if he can show that, considering the evidence admitted at trial together with the newly discovered evidence, no rational jury could find guilt beyond a reasonable doubt. Thus, as per Justice White’s suggestion, the majority imports a Jackson v. Virginia sufficiency of the evidence standard into the actual innocence calculus.27 This is an impossibly high standard of proof. By that I do not mean that as a practical matter precious few applicants will be able to produce new evidence sufficiently compelling to meet the majority’s test. By that I mean that it will be impossible by definition for any applicant to meet the test, regardless of how compelling his newly discovered evidence.
This is so because any evidence sufficient to support a jury’s verdict beyond a reasonable doubt at trial will also be sufficient to support a rational jury’s guilty verdict even after adding the most compelling newly discovered evidence to the mix. In Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991), the Court jettisoned the “reasonable alternative hypothesis” understanding of the Jackson v. Virginia test for sufficiency of the evidence under the Fourteenth Amendment, an understanding that we had previously embraced in Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983). Assuming that evidence adduced at trial was sufficient to support a rational jury finding of guilt, all that newly discovered evidence could do is either 1) conflict with that evidence, in which case the jury’s verdict of guilt remains rational, since we presume it resolved all conflicts in the light most favorable to the verdict; or, 2) create a reasonable alternative hypothesis, that is, an inference of innocence that is as consistent with all the evidence, trial-adduced as well as newly discovered, as is the inference of guilt. Under Carlsen, supra, given this second scenario, we would have declared the evidence insufficient. See also Girard v. State, 631 S.W.2d 162 (Tex.Cr.App.1982). Presumably, applying that standard to the habeas applicant who claims newly discovered evidence that shows his actual innocence, a colorable claim could be made, and applicant might even prevail.
But under Geesa, supra, as long as there is a rational inference of guilt to be derived from all the evidence, it does not matter whether there is also an equally consistent inference of innocence; the evidence will be declared sufficient. In essence, we have rejected the notion of Carlsen that as long as there is an inference of innocence that is consistent with all the evidence, no rational *418trier of fact can accept an equally consistent inference of guilt beyond a reasonable doubt. Absent that possibility in our understanding of the Jackson v. Virginia sufficiency standard, it sets up an insurmountable obstacle when applied to the habeas applicant trying to establish a claim of actual innocence under the Fourteenth Amendment. He simply will not be able to show actual innocence, because no amount of newly discovered evidence will overcome the rationality of the jury’s verdict of guilt based upon the evidence that was adduced at trial.
I am at a loss to understand why the majority would go to the trouble of, and risk censure for, devising such an elaborate advisory opinion, recognizing eognizability of a claim of actual innocence in post-conviction habeas corpus, and then announcing a burden that ensures that no applicant can ever obtain relief on the basis of that new claim. I cannot help but come away with an abiding impression that the majority’s objective in this whole matter has been to wrest control of Graham’s destiny from the courts of equity, and the executive branch, and to ensure that when he finally appears before this Court, he cannot prevail. In my view, the Court is entirely too jealous of its turf.
TV.
The Court errs to grant mandamus and prohibition relief in this cause. It compounds that error by issuing an advisory opinion on the availability of habeas corpus relief in the absence of any application from Graham. For these reasons I respectfully dissent.
MEYERS, J., joins.. Relator Holmes filed an application for writ of mandamus in this Court asking us to order Judge Lowiy to dismiss his temporary injunction. In an unpublished order we observed:
"... The notice of appeal recites the named defendants are exempt from filing a cost bond.
"Tex.R.App.Pro. Rule 43(a) provides, in pertinent part that the pendency of an appeal from an order granting interlocutory relief does not suspend the order appealed unless ‘the appellant is entitled to supersede the judgment without security by giving notice of appeal.' Because the Board of Pardons and Paroles is exempt from posting bond, Judge Lowry’s order was suspended by operation of law due to the notice of appeal. Ammex Warehouse Company v. Archer, 381 S.W.2d 478 (Tex.1984 [sic]); City of San Antonio v. Clark, 554 S.W.2d 732 (Tex.Civ.App. — San Antonio, 1977, no writ).
“In view of the current status of Judge Low-ry’s order, none of the parties are presently enjoined from taking any action. Therefore, we deny leave to file the instant original application for writ of mandamus.”
. In its unpublished order the court of appeals observed:
"... On perfection of an appeal from an interlocutory order, an appellate court may issue 'such temporary orders as it finds necessary to preserve the rights of the parties until disposition of the appeal.’ Tex.R.App.P. 43(c); see Lamar Builders, Inc. v. Guardian Sav. & Loan Ass’n, 786 S.W.2d 789, 790 (Tex.App.— Houston [1st Dist.] 1990, no writ). An appellate court may issue writs as necessary to enforce its jurisdiction by preserving the subject matter of the lawsuit pending consideration of the merits of the appeal. Tex. Gov’t Code Ann. § 22.221(a) (West 1988); Mote Resources, Inc. v. Railroad Comm’n, 618 S.W.2d 877, 878-79 (Tex.App. — Austin 1981, orig. proceeding).
“This Court acquired jurisdiction over the proceeding when appellants filed their notice of appeal. Ammex Warehouse Co., 381 S.W.2d at 482; see Tex. Gov’t Code Ann. § 20.220(a) (West 1988). In his affidavit in support of the motion, Graham’s counsel states that, on August 11, 1993, an assistant attorney general and counsel for appellants told him that appel*408lant's had not rescheduled the execution and that they ‘planned to carry out the execution of Mr. Graham on August 17, 1993.’
"Clearly, to proceed with 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. See Mote Resources, Inc., 618 S.W.2d at 879. Because to do so would interfere with this Court’s jurisdiction over the appeal, we grant the request for relief.”
. By what authority this Court granted the stay on August 16 is a puzzle. Having contemporaneously denied leave to file application for writ of mandamus, and having nothing else before us save Graham’s motion that, in the event we grant leave to file, we stay his execution, one might wonder in what respect this court retained jurisdiction to act. We have done so under similar circumstances before. See Ex parte Herrera, 828 S.W.2d 8 (Tex.Cr.App.1992) (stay of execution granted by this Court pending disposition of petition for certiorari in the United States Supreme Court). We have also declined to do so under similar circumstances. See Ex parte Lockhart, 868 S.W.2d 346 (Tex.Cr.App.1993) (motion for stay of execution unaccompanied by application for writ of habeas corpus denied for want of jurisdiction).
In any event, so long as our stay of execution is in place, one might wonder why the question whether the court of appeals had authority to enjoin Graham’s execution pending disposition of the State’s interlocutory appeal of Judge Low-ry’s order is not simply moot. Indeed, one might wonder why our stay of execution does not render interlocutory appeal in the court of appeals of the question whether Judge Lowry can enjoin Graham's execution pending trial on the merits of Graham's petition for declaratory judgment is not likewise moot, since presumably Lowry can proceed to trial without worry that the subject of the litigation will expire so long as our stay remains in place. However, presumably the Court will lift its stay of execution should it find that the court of appeals lacked authority to issue injunctive relief, and so proceeds to the merits of the question whether mandamus relief lies.
. When a district court has purported to enjoin prosecution of a criminal case, as opposed to enjoining criminal conduct, this Court has stepped in and issued the writ of prohibition. State ex rel. McNamara v. Clark, 79 Tex.Cr.R. 559, 187 S.W. 760 (1915). So has the Texas Supreme Court. Crouch v. Craik, 369 S.W.2d 311 (Tex. 1963). But in McNamara we intervened not under our only-recently-endowed general power to issue writs of mandamus and prohibition "in criminal law matters,” but in the protection of our own jurisdiction. However, nothing about the temporary injunction granted by the court of appeals in this cause threatens this court’s jurisdiction. See text, post.
. See also Administrative Procedure and Texas Register Act, Article 6252-13a, § 12, V.A.C.S., which provides in relevant part:
"Sec. 12. The validity or applicability of any [state agency] rule ... may be determined in an action for declaratory judgment in a district court of Travis County, and not elsewhere, if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff....”
It is true that under Section 21(f) of APTRA, section 12 does not apply to the Board "in the conducting of hearings or interviews relating to the grant, rescission, or revocation of parole or other form of administrative release.” To the extent Graham may be seeking a full pardon on account of innocence, however, the exception in Section 21(f) may not apply. The definition of "administrative release” contained in the Board's own rules does not seem to embrace full pardon. Compare 37 Texas Administrative Code, § 141.111 and § 143.2. It is at least arguable, therefore, that Graham could bring his lawsuit under APTRA as well.
. For example, the Declaratory Judgments Act does not confer jurisdiction upon a district court that does not already have some justiciable controversy before it. E.g., Firemen’s Ins. Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968). But this too is a question for the civil courts to decide. See discussion of State v. Morales, 869 S.W.2d 941 (Tex.1994), in text, post.
. Relator Holmes also argues in the court of appeals that this Court has jurisdiction to decide the question whether the Board is exercising its clemency function in a constitutional manner, under Article 11.07, V.A.C.C.P.; and that because Section 3 of that provision makes habeas corpus returnable to this Court in a “procedure" that is “exclusive," the district court had no jurisdiction over Graham's petition. See discussion of this question in the text, post. He does not explain why invoking this Court's post-conviction habeas corpus power to decide whether the Board is exercising its clemency function constitutionally would not likewise violate separation of powers.
. But see this writer's concurring opinion in Smith v. Flack, supra, at 794-95.
. Had the Supreme Court regarded the question of whether the district court had jurisdiction to grant equitable relief in Morales to have been a *411criminal law matter, it would have had jurisdiction only to dismiss the writ of error — just as this Court dismissed the State's petition for discretionary review in Morales for want of jurisdiction, presumably because it was not a “criminal case" for purposes of our appellate jurisdiction under Article V, § 5.
. Thus, taking the broader view of "the subject of the mandamus litigation,” viz: whether Judge Lowry’s court had jurisdiction to decide if the Board’s clemency proceedings are constitutionally adequate, there is a perfectly satisfactory remedy in the ordinary appellate process.
. It appears that a writ of error "is not allowed” to the Texas Supreme Court on this question. V.T.C.A. Gov’t Code, § 22.225(b)(4). Whether this Court could take the question on discretionary review depends upon whether, "criminal law matter” notwithstanding, it is a "criminal case” under Article V, § 5, Texas Constitution; defining our appellate jurisdiction.
. I say "conceivable” advisedly. It would still seem, at any rate, that the court of appeals would have jurisdiction to decide whether Judge Lowry had jurisdiction, and authority to enjoin the execution in the meantime to protect the subject matter of the interlocutory appeal.
. Even if this Court orders the court of appeals to remove its temporary injunction, and removes it own stay, it may be a while before Graham could be executed. Because the August 17 execution date has expired, a new execution date will have to be set “not less than thirty days from the day the court sets the execution date[.]” Article 43.14, V.A.C.C.P. In that time the court of appeals could well decide the merits of the accelerated interlocutory appeal.
. It may be that relators are more hopeful of obtaining a palatable outcome in this Court. But the office of mandamus is not to supply a more favorable forum, but to supply any forum at all. Mandamus should not be used to dictate a partic*412ular result. Pope v. Ferguson, 445 S.W.2d 950 (Tex.1969); Ex parte Newman, 14 Wall. 152, 81 U.S. 152, 20 L.Ed. 877 (1871).
. Relators do not here reiterate the argument that Article II, § 1 of the Texas Constitution prevents the judiciary from intervening in the executive function of the Board. See p. 410 & n. 7, ante.
. To the extent the court of appeals' injunction invades the convicting court's exclusive jurisdiction to set the specific execution date, Article 43.14, supra, that invasion is both de minimis and sui generis. It is de minimis because it does not in any way affect the validity of the judgment and sentence, or this Court's mandate. See text, immediately ante and post. It is sui generis in that it is not likely to arise again. There are two possible outcomes should Graham's lawsuit proceed. In either event, the decision there will end any technical encroachment upon the jurisdiction of the convicting court. On the one hand, the civil courts may decide that Graham is entitled under due course of law to a clemency hearing before the Board. In that event, the Board will provide such a hearing both to Graham and to subsequent, similarly situated death row inmates. On the other hand, the courts may decide no hearing is required. Graham's execution will be re-set and subsequently carried out. Future convicted capital murderers raising the same claim will be denied injunctive relief under the doctrine of stare decisis. Should some recalcitrant district court enjoin a future execution date in spite of stare decisis, then it might be appropriate for this Court to intervene in the protection of our appellate mandate. See, e.g., State ex rel. Looney v. Hamblen, 74 Tex.Cr.R. 526, 169 S.W. 678 (1914). Because any technical invasion on the convicting court's authority to set an execution date is, thus, both de minimis and *413sui generis, the Court should exercise its discretion to deny mandamus relief.
. That is, if either discretionary review or writ of error is even available. See n. 11, ante.
. In fairness, this appears an unlikely result, in view of the fact that on August 3, 1993, Judge Lowiy sent a letter to the parties indicating that he believes Graham is entitled to a clemency hearing.
. It is interesting to note that in Wilson itself, the Court did not rely on the language of exclusiveness in former Article 119, supra, now Article 11.07, § 3, supra, as the reason we were compelled to step in to protect our habeas corpus jurisdiction. In Wilson we had already exercised our habeas corpus jurisdiction, and exercised our mandamus power to protect our judgments already rendered on habeas corpus.
. Indeed, he does not claim his capital murder conviction is even voidable, much less void. See Ex parte Truong, 770 S.W.2d 810 (Tex.Cr.App.1989).
. This question of whether a habeas corpus applicant is raising a claim that, if decided in his favor, will result in his discharge should not be confused with the question of "mootness”— whether post-conviction habeas corpus is available to assail a final felony conviction for which the applicant is no longer confined. We have held that an applicant may attack the validity of a former final felony conviction under Article 11.07, supra, even if he is not currently confined as a result of that conviction, so long as he is in fact "confined” on some other offense and the former conviction may have collateral adverse consequences. See Ex parte Renier, 734 S.W.2d 349 (Tex.Cr.App.1987). If he is not confined, he may still pursue the writ of habeas corpus, but it will not be returnable to this Court under Article 11.07, supra. Id. But whether currently confined or not, the applicant is attacking the validity of a final conviction, from which, if he is correct, he will be discharged. In his suit in Judge Lowry's court, Graham does not seek a discharge from his conviction. Were Graham to apply to this Court for a post-conviction writ of habeas corpus to order the Board to hold a clemency hearing, he would not.be seeking a discharge from his conviction here either.
.In Alegría, the Court wrote:
"At the outset it may well be questioned whether this court possesses jurisdiction to dispose of the question raised by virtue of the habeas corpus writ as petitioner does not seek outright release or discharge but only a determination of his eligibility for parole. Under former holdings of this court, i.e., Ex parte Rios, Tex.Cr.App., 385 S.W.2d 677, whose underpinning was McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238, a serious question might well be presented. However, the doctrine of McNally v. Hill, supra, was laid to rest with proper respect by the decision of Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426."
See also Ex pane Easley, 490 S.W.2d 570 (Tex.Cr.App.1972); Ex pane Weaver, 537 S.W.2d 252 (Tex.Cr.App.1976). In Ex parte Rios, supra, this Court had relied on McNally merely as persuasive authority for the proposition that habeas corpus will lie only to determine questions germane to the lawfulness of the custody of the applicant. Subsequently, in Peyton, the United States Supreme Court held that a claim for immediate discharge was no longer a prerequisite to habeas corpus relief pursuant to 28 U.S.C. § 2241(c)(3), overruling its earlier decision in McNally. When it comes to state habeas corpus jurisprudence, however, Peyton was no more binding authority on this Court than McNally had been. See Ex parte Crispen, supra (Clinton, J., concurring). Before expanding the reach of post-conviction habeas corpus so substantially in Alegría, it would have been well for the Court to examine the opinion in Peyton critically to determine whether it should be followed in Texas.
. The Court has also ordered the Board to hold particular kinds of hearings in the past, under Article 11.07, supra. See Ex parte Maceyra, 690 S.W.2d 572 (Tex.Cr.App.1985); Ex parie Glenn, 690 S.W.2d 578 (Tex.Cr.App.1985); Ex parte Johnson, 690 S.W.2d 585 (Tex.Cr.App.1985); Ex parte Williams, 738 S.W.2d 257 (Tex.Cr.App.1987); Ex parie Martinez, 742 S.W.2d 289 (Tex.Cr.App.1987). In all of these cases the Court held, first for statutory, and later for constitutional reasons, that the Board cannot administratively revoke parole on the basis of nothing more than evidence of a subsequent conviction. Instead, the Board must hold a hearing to allow ventilation of reasons it might choose to exercise its discretion not to revoke parole in spite of the subsequent conviction. In each case, however, the applicant was discharged from actual custody of the Department of Corrections, at least to the extent that his custody stemmed from the revocation of his parole rather than his subsequent conviction.
. This is not to say that the Court did not entertain claims under former Art. 119 that an *416inmate, e.g., had been denied good time credits. We entertained those claims pursuant to a statutory scheme, however, by which good time credits operated to earn the inmate actual commutation of his sentence, and granted habeas relief only if, given the good time allegedly deprived the inmate, he would be entitled to be discharged from the penitentiary. E.g., Ex parte Anderson, 149 Tex.Cr.R. 139, 192 S.W.2d 280 (1946); Ex parte Baird, 154 Tex.Cr.R. 508, 228 S.W.2d 511 (1950).
. Graham seeks neither “immediate” nor a "speedier” discharge from the judgment and sentence against him. His lawsuit does not attack "the fact or duration of his confinement.” Therefore, not even the federal analog suggests that habeas corpus should be the exclusive remedy. Preiser v. Rodriguez, supra, 411 U.S. at 500, 93 S.Ct. at 1841, 36 L.Ed.2d at 456. See also Gerstein v. Pugh, 420 U.S. 103, at 107, n. 6, 95 S.Ct. 854, at 859, n. 6, 43 L.Ed.2d 54, at 61, n. 6 (1975).
. The majority decides that a claim of actual innocence is cognizable in an application for post-conviction habeas corpus under Article 11.07, supra, because it raises a claim under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. It should be noted that in his suit for declaratory judgment relief in Judge Lowry’s court, Graham *417studiously avoided any reliance whatsoever on the federal constitution. Thus, the majority not only manufactures an issue not raised in the civil lawsuit, it resolves that manufactured issue according to authority not invoked in that lawsuit. I suspect the Court must base its advisory holding on the Fourteenth Amendment in order to avoid the obstacle that a claim that a conviction is flawed under the Texas Constitution is not cognizable in habeas corpus under Article 11.07 unless the defect renders the conviction void. See Ex parte Truong, 770 S.W.2d 810 (Tex.Cr.App.1989).
. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).