dissenting to the order filing and setting relators’ mandamus actions.
Once again we are poised on the brink of a constitutional precipice.
Only two months ago, this Court denied the Relators’ motions to file these mandamus actions in State of Texas ex rel. John B. Holmes, Jr. and Terns Board of Pardons and Paroles, Et Al. v. The Honorable Court of Appeals for the Third District, 860 S.W.2d 873 (Tex.Crim.App.1993). I concurred with this Court’s disposition of the request for mandamus filed by the State and expressed my views that the clemency process in the State of Texas is seriously flawed for not providing an appropriate vehicle by which a convicted felon can invoke such process. Id., (Miller, J. concurring).
Today the majority has decided to reconsider, on its own motion, the question of whether a court of appeals has the authority to issue an injunction to prevent the rendering moot of a civil case pending in its court. As I believe that this decision could lead to grave and far-reaching constitutional and jurisdictional consequences, I must dissent.
The majority’s action today will return us to the jurisdictional entanglement which we so deftly avoided two months ago. The Rela-tors have brought this mandamus action to the Court of Criminal Appeals. Graham could very well file a similar action in the Texas Supreme Court. We are faced with the potential for the anomalous situation of ultimately having two conflicting orders from the two highest courts in the State — one order from this Court ordering that the execution take place and an order from the Supreme Court enjoining such execution. The legal quagmire which could arise from such a conflict is unprecedented in this state.1
The Third Court of Appeals has not ruled on the question of jurisdiction over the particular matters at issue in this case. It was, in fact, the State that initially gave notice of appeal to the Third Court of Appeals and invoked its jurisdiction. However, the only action the court of appeals has taken so far is to issue an injunction requested by Graham in order to preserve the subject matter of the lawsuit pending consideration of the State’s challenge to the trial court’s action. It is the function of an intermediate court to make determinations about the propriety of a trial *388court’s actions and thus the Court of Appeals certainly has jurisdiction to review the trial court’s findings, as the State has requested it to do. See TEX. CONST. Article 5, § 6; TEX.GOV’T CODE § 22.220 (Vernon 1988).
In fact, it may very well be that the Court of Appeals will hold that the Court of Criminal Appeals has the proper jurisdiction over the issues raised by Graham in the trial court and dismiss his action for want of jurisdiction. See State ex rel. Wilson v. Briggs, 171 Tex.Crim. 479, 351 S.W.2d 892 (1961). Alternatively, the appellate court may hold that the trial court improperly granted the injunction because Graham’s proper avenue for relief is an Art. 11.07 writ.2 Under either scenario, the Court of Appeals would actually be affirming the jurisdiction of this Court over the issues raised by Graham.
By granting leave to file this mandamus action, the majority has unduly exacerbated the jurisdictional conundrum developing in this case, hindered the resolution of these issues in a constitutionally acceptable manner, and threatened the careful balance of the appellate court system in this state. At best, the decision to hear the mandamus actions is premature. At worst, it could ultimately result in a decision from the Texas Supreme Court holding that it has jurisdiction over this matter and a decision by the Texas Court of Criminal Appeals holding that it has the proper jurisdiction. Shall we then mandamus each other?
*389As the Court of Appeals has acted within its jurisdictional authority, there is no need for further consideration of Relators’ motions for mandamus. Because the majority has held otherwise and has embarked on a course which could lead to an unnecessary jurisdie-tional battle, I dissent.
. My concern for the constitutional and jurisdictional issues at stake here should not be interpreted as expressing any opinion on the merits of Graham’s underlying arguments. Indeed, it is entirely possible that the Court of Appeals may never even reach these arguments as it may find that this Court is the proper venue for Graham's complaint as Graham does have a remedy under criminal statutes by which to pursue his claim of actual innocence, viz: filing a post conviction application for writ of habeas corpus pursuant to Art. 11.07, V.A.C.C.P., stating that he has been denied due process of law.
As I explained in my concurrence to this court’s initial ruling in this case, State of Texas ex rel. John B. Holmes, Jr. and Texas Board of Pardons and Paroles, Et Al. v. The Honorable Court of Appeals for the Third District, 860 S.W.2d 873 (Tex.Crim.App.1993), Graham’s claim for relief under Art. 11.07 would be based on the procedures for obtaining clemency outlined in Chapter 143 in Title 37 of the Texas Administrative Code. Graham's only apparent available avenue of relief is to pursue a full pardon under Section 143.2, which provides for pardons based on innocence. The Board of Pardons and Paroles will “only consider" applications for recommendation to the governor for full pardon upon receipt of:
(1) a written unanimous recommendation of the current trial officials of the court of conviction; and/or
*388(2) a certified order or judgment of a court having jurisdiction accompanied by certified copy of the findings of fact (if any); and
(3) affidavits of witnesses upon which the finding of innocence is based.
Consequently, pursuant to this section, Graham may apply to the Board of Pardons and Paroles (hereinafter the Board) for a recommendation to the governor for full pardon. But as previously set out, the Board will only consider such applications upon the receipt of two or three of the above-listed items. Query; how does Graham get access to these documents? From what are these documents generated? The language, "finding of innocence,” suggests to me that a hearing on the claim of actual innocence must have been held at some time prior to the filing of the application seeking to institute the governor’s clemency power. However, when these claims-of actual innocence are raised after the trial court has lost plenary jurisdiction over the case, there is a necessity of a recommendation of the trial court, yet there is no statutory provision by which an applicant can obtain the hearing before the trial court.
If there is no procedure in place by which Graham may satisfy the prerequisites to a hearing in § 143.2, then he may indeed be denied his process due for the Board will "only consider” his application for a pardon upon its receipt of the written materials specified in § 143.2. This of course assumes Graham can make the necessary initial showing of actual innocence to trigger the relief process required by Herrera v. Collins, —U.S. —, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Whether Graham has the necessary quantum of evidence to meet the threshold showing is not presently the issue before this Court, and I express no opinion on that. What is of utmost importance is that if Graham can meet the threshold showing (whatever that may be), the State of Texas provide a vehicle by which his evidence may be heard and a finding may be rendered regarding his claim of innocence.
. If the state has not provided a vehicle by which a person can obtain the hearing required by § 143.2, Graham perhaps can seek relief for his claim of denial of due process via an Art. 11.07 writ. The possible scenario would be that once he has filed that writ, claiming a lack of due process, it would be incumbent upon the trial court to determine whether he has made the threshold Herrera showing. If the trial court determines that he has met this threshold, then it could then consider his claims in a hearing and forward its findings of fact and conclusions of law to this Court pursuant to Art. 11.07, § 2(d). Alternatively, the trial court could chose not to hold a hearing [as per § 2(c) ]. This Court would review the trial court’s decision under § 3 of Art. 11.07. If it can be shown that the applicant met the Herrera threshold and the trial court did not hold a hearing, then this Court could order that the trial court hold a hearing and make findings of facts and conclusions of law regarding applicant’s claims.
Once the trial court has held such hearing and made its judgment and findings of facts, the applicant would then have in his possession the necessary court documentation required by § 143.2, which he can then forward to the Board of Pardons and Paroles for consideration of his application for a full pardon. This avenue, therefore, would allow a convicted felon an opportunity to obtain this hearing, without which he might have no means by which to receive a pardon.
I use this hypothetical example to show that there are many possible resolutions to the problem at hand that will not result in a constitutional confrontation between courts. As stated above, it is also possible that the court of appeals will rule that it is only this Court which has jurisdiction over any issue related to Graham’s punishment. In any event, we should choose the path of prudence and await the ruling of the court of appeals rather than hastily set into motion events which may become our undoing.