concurs in results:
¶ 1 I do not disagree with the result in this opinion which affirms the conviction but remands for resentencing. However, I do disagree with the analysis that is applied regarding the procedure for request of expert witnesses.1 I do not believe the mere noting of the provisions of 19 O.S.Supp.1992, § 138.8, is sufficient to address the problems I see with the analysis.
¶ 2 To appreciate and understand the application of this statutory reference, a review of the history of the statute, together with revisions and ultimate repeal of 22 O.S.Supp. 1985, § 464, must be made. From statehood until 1991, Title 22 had contained a Section 464. Up until 1985, that particular section related only to the right to counsel prior to arraignment and provided for compensation of counsel. However, in 1985, Section 464 was amended to address the Ake2 problem. In that amendment, the Legislature created a procedure for an individual charged with a crime where the death penalty could be imposed to apply for an expert witness. That amendment required the trial court to rule on the reasonableness of the request by the defendant for expert witnesses and other services. It also provided for the payment of compensation to expert witnesses out of the state judicial fund in a sum not to exceed $750.00 per defendant, with the specific amount to be determined by the trial judge, subject to the approval of the Chief Justice. In addition, the amendment provided that expenses in excess of $750.00 per defendant could be compensated upon application and approval of the Chief Justice, according to rules promulgated by the Supreme Court. Additionally, it stated that no application for compensation of expert witnesses and other services would be heard by the trial court prior to the final trial disposition. This statute was repealed by Laws 1991, c. 238, § 37, eff. July 1,1991.
¶ 3 That repealer was at the end of the Indigent. Defense Act which. created the *1176Oklahoma Indigent Defense System. Prior to that time, there had been an Oklahoma Public Defender System which provided only limited services on a statewide basis, and almost all appointments of attorneys for indigent defense at the trial level were made by the District Courts with the attorneys being compensated through the court fund. This Act created a body of new law in formulating the organization of the Oklahoma Indigent Defense System (O.I.D.S.), its Board and Executive Director. A part of that Act provided the Executive Director of O.I.D.S. would determine payment of expert witness services “at a reasonable hourly rate”. Exceptions were made for those counties above 200,000 population, according to the federal decennial census of 1960 or any succeeding federal decennial census. The repealer to this Act included Section 464, Title 22. Then in 1992, the Act was amended3 and expanded the duties of the Executive Director and the Indigent Defense Board. This amendment included the requirement for the payment of expert witnesses as authorized by the Executive Director to be subject to the approval of the Board.
¶ 4 As the opinion notes in footnote 25, we held in Toles v. State, 947 P.2d at 187-88, there was no Ake violation where the Executive Director failed to approve an attorney's request for a pharmacologist to investigate and develop a voluntary intoxication defense. That provision was a part of the new law, which was added in the 1991 Act. In the 1992 Act, in Section 21, the Legislature added Section 138.8 of Title 19, which states, “in counties subject to the provisions of Section 138.1 of Title 19 of the Oklahoma Statutes, expert witness compensation for indigent defense shall be paid by the Court fund pursuant to procedures established by the governing board of the Court fund.” It would appear, the repealer at the end of the 1991 Act, which repealed Section 464, vacated the only statutory authorization/procedure for the appointment and compensation of expert witnesses. A logical reading of the sequence of events in these Session Laws is that the repealer, which did not provide a vehicle for Oklahoma and Tulsa counties to pay expert witnesses since they were not a part of the Indigent Defense System, was overlooked and subsequently corrected at the first opportunity in the 1992 session.
¶ 5 In the previous provisions of Section 464, the Legislature specifically delegated to the trial court the responsibility to make decisions relating to expert witnesses and their compensation. Likewise, in the 1992 provision, the Legislature specifically said those expert witnesses shall be paid by the Court fund pursuant to procedures established by the governing board of the Court fund. The Legislature did not include the District Court in that process. It seems the logical interpretation, as we look at that 1991-92 session laws revamping the Indigent Defense System, is as we said in Toles, the Legislature made a conscious decision that the Indigent Defense System is going to be responsible for its own expenses. 947 P.2d at 187. That applies to Oklahoma and Tulsa counties likewise through the provisions of Section 138.8 of Title 19.4
¶ 6 A reading of these statutory amendments reveals that now the Court fund board sets a budget for the Public Defender in Oklahoma and Tulsa counties. The Chief Public Defender is then responsible for managing that budget and remaining within the budgetary authorizations. The Chief Public Defender in Tulsa and Oklahoma counties acts just as the Executive Director of O.I.D.S. acts. The Chief Public Defender receives requests, makes a determination of *1177the appropriateness of experts and either authorizes or denies the request for expert witnesses. If an expert is authorized, the Chief Public Defender then sets an amount which may be expended. It is clear this is the legislative intent which can be gleaned from a review of this history of the evolution of O.I.D.S. and the Public Defender Systems.
¶ 7 In this case, Appellant was initially determined to be indigent and counsel from the Tulsa County Public Defender’s Office was appointed to represent him. When the trial court granted Appellant’s request to represent himself, the Tulsa County Public Defender’s Office was directed to serve as stand-by counsel. Appellant then filed his request for a state funded expert witness with the trial court rather than proceeding under Section 138.8. Under the record in this ease, it does not appear the District Court of Tulsa County complied with the provisions of Section 138.8 of Title 19. Under the current statutory framework, a judge is not to be involved in authorizing or compensating expert witnesses within the context of the facts presented in this case. That budget is to be established by the governing board of the Court fund for the Public Defender’s office. Granted, that Court fund board would consist of a District Judge, Associate District Judge and District Court Clerk of the County as set out in 20 O.S.1991, § 1302. But by its repeal of Section 464 of Title 22, the Legislature has changed the procedure. Because of this change in procedure established by the Legislature, the analysis set forth in Fitzgerald, relating to the trial judge, is no longer applicable within the State of Oklahoma. The only time the District Court should become involved in the issue of funding, as it relates to the Public Defender, is if the Public Defender believes insufficient funds have been provided to fulfill his or her statutory and constitutional role. An action could be filed in the District Court to mandamus the providing of those funds. However,’ other than the sufficiency of the overall budget, the individual decisions relating to the expenditure of those funds is the same for the Public Defender in Oklahoma and Tulsa counties as it is for the Executive Director of O.I.D.S.
¶ 8 It would be appropriate to remand this case to the District Court of Tulsa County to have an Evidentiary Hearing for a record to be made to determine the procedure being utilized in Tulsa County and if Tulsa County has complied with this statutory provision. If Tulsa County has not complied with the statutory provision, then this Court would have an evidentiary base upon which to make findings and. enter directives as a part of our remand for resentencing. We should give serious consideration to this issue regarding the application of the specific statutory revisions in this case rather than the general statements of our belief of what should be done under Ake. As we set out in Banks v. State, 953 P.2d 344, 346-47 (Okl.Cr.1998), if oür decision on an issue is not a violation of the federal Constitution, then regardless of whether it is right, wrong or another Court would have done it different, it should be followed and applied. The same is true as to our role in applying legislative enactments. Regardless of whether we might have done it different,'if the Legislature has provided a constitutional vehicle for addressing the issue of authorization and funding for expert witnesses, then we are required to apply that procedure.
. I remain committed to the view expressed in Rogers v. State, 890 P.2d 959, 979 (Okl.Cr.1995) (Lumpkin, J. Concur in results) and Hawkins v. State, 891 P.2d 586, 599-600 (Okl.Cr.1995) (Lumpkin, P.J. specially concurring) regarding the current scope and applicability of Ake in Oklahoma criminal procedure.
. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).
. Laws 1992, c. 303, § 5, eff. May 27, 1992.
. This interpretation is consistent with the limitations on the expenditure of funds set forth in 20 O.S.Supp.1997, § 1304(B)(19). That section provides in pertinent part:
B. The term "expenses” shall include the following and none others:
19. Reasonable compensation for expert, investigative or other services authorized by the court for indigent defendants not represented by a county indigent defender or the Oklahoma Indigent Defense System, if requested; ... (emphasis added).
This language means that when the defendant is represented by OIDS or Tulsa or Oklahoma County Public Defender, claims for experts witnesses must go through those entities and are not payable from the court fund.