dissenting.
The issue that is actually before this Court to be resolved is whether the trial judge had the authority to order the Commissioners Court of Eastland County to pay relator the sum of $17,010.00 as court appointed attorney’s fees, which concerned his court appointment to represent an indigent accused individual. The question whether a trial judge might order that attorney’s fees be paid for work done by the attorney when the attorney represented the accused in a non-court appointed capacity is what Judge White, on behalf of a majority of this Court, answers and writes on. Perhaps one should not quarrel with what he states on that issue. But that is not the issue that is before us to resolve.
I attach hereto and make a part hereof as “Appendix A” a copy of the trial judge’s order ordering the Commissioners Court of Eastland County to pay relator $17,010.00 as his fee for representing an indigent defendant. The trial judge’s order, as it now reads, is a non-severable order. Because it is subject to debate .whether the trial judge’s order was intended to cover both the period of time when relator represented his client in the capacity of a non-court appointed attorney and when he represented his client in the capacity of a court appointed attorney, a hearing should be conducted in the trial court. The majority of this Court, however, declines to issue that order. I dissent to that decision.
Thus, the trial judge’s order as it now reads must be construed in the most liberal manner and not how one might desire that it should read.
Of course, in construing the order as it is now worded, one should take into consideration the law that then governed the trial judge’s authority to set the amount of the attorney’s fee for court appointed counsel.
As easily seen, the trial judge’s order expressly provides that the application that had been submitted by relator was ordered approved. However, after the trial judge approved the application, he then stated the following: “and it is the further ORDER of the Court that the Honorable Commissioners Court of Eastland County, State of Texas, promptly pay GEORGE GRAY, court appointed attorney for the indigent defendant, BRENDA GAIL (PERRY) ANDREWS, the sum of $17,010.00 for said attorney’s legal services rendered said defendant to date in the above captioned and numbered cause.” There is nothing in this order that might reflect or indicate that the trial judge was not ordering relator paid $17,010.00 for the services he performed after he was court appointed. Given the wording of the order, it is actually only the trial judge himself who knows on what basis he arrived at the $17,010.00 figure, and the record at this time does not reflect just exactly what he had in mind when he signed the order. We have not yet heard from the trial judge.
Because we have not yet heard from the trial judge, given the state of this record, and to be fair to both parties, I find that a factual hearing is necessary in this case. Because this Court is ill equipped to conduct a hearing, the preferred procedure in a mandamus proceeding is to have the trial court conduct the hearing. See and compare Wolters v. Wright, 623 S.W.2d 301, 305 (Tex.1981). Therefore, in order to *609make the determination whether the order should be severable, I first vote to order the trial judge to conduct a hearing on this issue, during which hearing Hon. Claude Williams must testify so that we will be aware of his views on the subject.
Otherwise, we must read the order in the light most favorable to relator. Such a reading requires that we grant the writ of mandamus.
The order that orders the payment of $17,010.00 to relator, as it now reads, is not a severable order and the order, as it now reads, must be liberally read. This causes the order to read that when the trial judge signed the order he intended that relator be paid $17,010.00 for the services that he rendered since becoming court appointed for Andrews.
The record before us makes it clear to me that at all times the respondents have defended this application on the following, and only the following, ground: The trial judge’s order was not duly presented to the Commissioners Court of Eastland County for its consideration and determination of whether or not to approve the same. Judge White himself correctly eliminates this “defense” from the case, because “The Commissioners Court knew of the order and refused to pay it. This suffices as a demand for performance and a denial making it the proper subject for the instant writ.” Footnote 4, page 605.
It is true that the respondents argue that they received no notice that the trial judge was going to sign the order when he did. However, there was nothing in our law when the trial judge signed the order that might have required them to be notified that the trial judge was going to sign the order. Of course, when the respondents learned of the order, they unquestionably could have petitioned or motioned the trial judge to reconsider the total amount of $17,010.00 that he had ordered paid to relator, or sought to have it clarified. But, they did not see fit to take either step, and have not to this date seen fit to take either step.
It is important for the reader to understand that from the face of the order, that ordered the payment of $17,010.00 to relator, one cannot state with legal certainty that any portion of the $17,010.00 was meant to go to the pre-court appointment stage of the proceedings. The order, like any court order, must be read and construed in a liberal fashion.
As the order, ordering the payment of $17,010.00 to relator, now reads, it is a nonseverable order as to the total figure of $17,010.00, and because there is nothing in the order that any portion of the $17,010.00 related to the pre-court appointment proceedings, or, to put it another way, because there is nothing in the order that might reflect or indicate that all of the $17,010.00 was not meant to go to the post-court appointment proceedings, relator is entitled to be paid the $17,010.00, as ordered by the trial judge. His application for the writ of mandamus should be granted because, under this record, respondents only have a ministerial duty to perform, and that is to approve the order so that the County Treasurer of Eastland County can issue a check in the amount of $17,010.00 to relator.
Under the terms of Art. 26.05, supra, as it existed when the trial judge made the appointment and when he signed the order of payment of $17,010.00 to relator, the statute clearly provided that as to the sum of money that might be ordered paid a court appointed attorney by the trial judge, that determination would be made solely by the trial judge and no one else, and the statute did not set any maximum fee that the trial judge could approve to be paid for each day or fractional part thereof in court representing the accused. The statute only set a minimum fee of $50.00; it did not set a maximum fee that could be paid. Nor did the statute require that an itemized bill be presented to the trial judge. Nor did the statute require that any notice be given to anyone before he signed the order of payment. Therefore, under the statute, a trial judge could approve whatever sum he felt was reasonable and could arrive at the figure by whatever method he himself chose to use, and he did not have to give anyone notice of what he was about to do or what he had done. And this Court so *610held, either expressly or implicitly, in Smith v. Flack, 728 S.W.2d 784, 789 (Tex.Cr.App.1987). This Court further held in Smith v. Flack, supra, at pages 789-790, that “we find that Article 26.05 clearly places a mandatory duty upon the county to pay court-appointed attorney fees.” (Footnote omitted).
In this instance, the Commissioners Court of Eastland County has never defended relator’s application for the writ of mandamus on the ground that the $17,-010.00 ordered by the trial judge to be paid to relator was an unreasonable attorney’s fee for the services he performed after he was court appointed.
Given the state of the record before us, this Court should issue the writ of mandamus. To the failure of this Court to do its duty and issue the writ, I must, but respectfully, dissent.
APPENDIX A
The State of Texas vs. Brenda Gail (Perry) Andrews
No. 17,184
In the District Court of Eastland County, Texas
ORDER
The foregoing Application having come on to be considered by the Court, the Court finds that the facts set forth therein are true and correct and that said Application has merit, and that it should be granted;
THEREFORE, it is ADJUDGED, ORDERED AND DECREED that the Application is approved and it is the further ORDER of the Court that the Honorable Commissioners Court of Eastland County, State of Texas, promptly pay GEORGE GRAY, court-appointed attorney for the indigent defendant, BRENDA GAIL (PERRY) ANDREWS, the sum of $17,010.00 for said attorney’s legal services rendered said defendant to date in the above-captioned and numbered cause.
Approved this 15 day of April, 1987.
/s/ Claude Williams
JUDGE PRESIDING
APR 22 1987