State Ex Rel. Holmes v. Honorable Court of Appeals for the Third District

885 S.W.2d 386

• Court: Court of Criminal Appeals of Texas
• Decided: November 9, 1993
• Docket: 71764, 71765
• Status: Published

Opinions

ORDER

PER CURIAM.

These are original actions filed on behalf of the State of Texas by the Attorney General and the District Attorney of Harris County. Relators seek to challenge an order granting a temporary injunction by the Court of Appeals for the Third District in Cause No. 3-93-421-CV, styled The Texas Board of Pardons and Paroles, et al., v. Gary Graham. The order purported to grant death row inmate Gary Graham a stay of his execution which was scheduled to take place on August 17, 1993.

Relator Holmes contends that Respondent’s order is unlawful and void ab initio 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 this Court under Art. V, Sec. 5 of the Texas Constitution. On behalf of the Texas Board of Pardons and Paroles, Respondent Morales urges: (1) the Court of Appeals had no jurisdiction to issue an injunction which is in effect a stay of Graham’s execution; (2) the Court of Appeals was procedurally barred from granting an injunction which was in effect a stay of Graham’s execution; (3) Graham has failed to present his complaint to the trial court by means of the exclusive post conviction habeas corpus remedy set forth within Art. 11.07, V.A.C.C.P.; and (4) this Court should assume original habeas corpus jurisdiction over this case and respond to the issue raised by Graham.

On August 16, 1993, this Court denied leave to file these actions. We now reconsider such denial on our own motion and grant leave to file both actions.¹ See Tex.R.App. Pro. Rule 211(c).

Due to the similarity of the contentions presented by Relator Holmes- and Relator Morales, the causes will be consolidated for submission.

The causes will be submitted on Wednesday, December 1, 1993, at 9:00 a.m. Relator Holmes and Relator Morales will be allowed a total of thirty (30) minutes for oral argument. Respondent will be allowed thirty (30) minutes for oral argument. Any additional briefs by Relators shall be filed on or before November 19, 1993. Any brief on behalf of Respondent shall be filed on or before November 29, 1993. In order to protect our jurisdiction to consider these actions, we direet all proceedings in Cause No. 3-93-421-CV styled Texas Board of Pardons and Paroles, et al, v. Gary Graham, be stayed pending further orders by this Court.

IT IS SO ORDERED.

1 . We decline to grant leave to file Relator Morales' second argument concerning an alleged procedural bar.