dissenting.
“While unconstitutional exercise of power by the executive and legislative *797branches of government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self restraint.” Stone, J., United-States v. Butler, 297 U.S. 1, 78, 56 S.Ct. 312 [324], 80 L.Ed. 477, 495, 102 A.L.R. 914 (1936).
The authority of the Court of Criminal Appeals to issue a writ of mandamus is limited. It may issue such writ only “in criminal law matters.” Article V, § 5, Texas Constitution, as amended Nov. 4, 1980, effective Sept. 1, 1981. See also Article 4.04, V.A.C.C.P. The relators seek to invoke the original subject matter jurisdiction of this Court praying for a writ of mandamus in order to collect the balance of fees they claim are due them by Harris County. The color of money is the name of the game, the subject of the litigation. It is a civil law matter. The majority today acts beyond this Court’s jurisdiction.
It is true the fees were ordered paid under Article 26.05, V.A.C.C.P., but like many lawsuits, the majority has had to construe and interpret a number of civil statutes in order to arrive at its conclusion that the respondents must “pay up” in order to avoid the issuance of a writ of mandamus. Passing the chicken once through boiling water does not chicken soup make. Neither does the involvement of one criminal law convert every lawsuit into a criminal law matter so that this Court acquires jurisdiction to issue writs of mandamus. Even the concurring opinion (Clinton, J.) kindly refers to the majority’s interpretation of said Article V, § 5, and Article 4.04, supra, as “hopelessly flawed.”
“Laws are made for men of ordinary understanding and should therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought in metaphysical subtleties, which may make anything mean everything or nothing at pleasure.” Thomas Jefferson, Letter to William Johnson, June 12,1823.
From the effective date of the 1891 amendment to Article V, § 5 of the Texas Constitution (when the Court of Criminal Appeals was originally created) until January 1, 1978, the effective date of the 1977 amendment to the same constitutional provision (Acts 1977, 65th Leg., p. 3359, 5 J.R. 18), the Court of Criminal Appeals could only issue writs of mandamus to enforce its appellate jurisdiction. It had no power to issue writs of mandamus generally. Millikin v. Jeffrey, 117 Tex. 134, 299 S.W. 393 (1927); State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973); Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1974); Walker v. State, 537 S.W.2d 36 (Tex.Cr.App.1976).1
During such times the Court of Criminal Appeals did not even have the authority to issue a writ of mandamus to compel a speedy trial in a criminal case. Its appellate jurisdiction was not involved. Only the Supreme Court of Texas under its general mandamus authority could issue such a writ. Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971); Pope v. Ferguson, 445 S.W.2d 950 (Tex.1969), cert. den. 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970).
When Senate Joint Resolution 18 was pending in the 65th Legislature (1977), this writer and other members of the Court of Criminal Appeals appeared before legislative committees of the House and Senate to explain its provisions, and to point out that under existing constitutional provisions this Court, a court of last resort for criminal law matters, did not even have the authority to issue writs of mandamus to compel speedy trials in criminal cases, that such business had become big business in the Supreme Court, and changes were needed. See Thomas v. Stevenson, 561 S.W.2d 845, 847 (Tex.Cr.App.1978) (Concurring Opinion, Onion, P.J.); Tape Recordings of Hearings, House Committee on Constitutional Amendments, April 6,1977, on file with the Texas House of Representatives; Dix, Appellate Review by Mandamus and Prohi*798bition in Texas Criminal Litigation, 17 Tex.Teeh L.Rev. 75, 84 (1986).
S.J.B. 18 proposed an amendment to Article V, § 5 of the Texas Constitution which was adopted by the voters on November 8, 1977 and became effective January 1, 1978. The pertinent part of the 1977 amendment provided:
“Subject to such regulations as may be prescribed by law, regarding criminal law matters, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writs of habeas corpus, mandamus, procedendo, prohibition, certiorari, and such other writs as may be necessary to protect its jurisdiction or enforce its judgments_” (Emphasis supplied.)
As pointed out in the concurring opinion in Thomas v. Stevenson, supra, at p. 848, there were limitations imposed on the newly granted authority.
“One important limitation, however, is that the court’s authority to issue such above described writs is limited to ‘criminal matters.’ The limitation was the subject of a committee substitute to said Senate Joint Resolution by Senator Bill Neier of Euless, sponsor of the joint resolution, early in the legislative process, to counter claims that without such limitation the Court of Criminal Appeals might use its newly granted writ powers in civil law matters.” (Emphasis supplied.)
With today’s opinion it can be said that the fears expressed in 1977 were well founded, and the drafters had a real basis for inserting a limitation into the authority being newly granted to the Court of Criminal Appeals.
Despite slight changes in the language,2 the limitation was retained and brought forward in the 1980 amendment to said Article V, § 5. The pertinent part of the amendment reads:
“Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habe-as corpus and, in criminal law matters, the writs of mandamus, procedendo, prohibition and certiorari....”
As earlier noted, relators now seek the issuance of a writ of mandamus from this Court of last resort in criminal matters to compel payment of the balance of the fees awarded them as court-appointed counsel by a district judge under Article 26.05, V.A.C.C.P. One relator (Smith) contends he was paid $1,700.00 but the original award was $2,500.00. He seeks the balance of $800.00. Two other relators seek balances of $100.00 each and the remaining relator claims a balance of $75.00. The respondents contend in their answers that payment of the lesser fees was lawful and proper in view of the fee-setting limitations placed on district judges by Rule VI(E) promulgated pursuant to the Court Administration Act, Article 200a-l, V.A.C.S., by the “Board of District Judges Trying Criminal Cases [in Harris County]” and various civil statutes affecting the duties of the County Auditor and the Commissioners Court. Clearly a legal dispute between the parties as to the proper fees to be paid exists, a squabble about money.
Even a first-year law student would have no difficulty in identifying this monetary dispute a civil law matter. And he would have no difficulty in understanding that in the trial of a criminal case the application and interpretation of civil statutes are often involved and vice versa.
In my opinion the instant proceeding is not a “criminal law matter” as contemplated by Article V, § 5 of the State Constitution and Article 4.04, V.A.C.C.P., and I would hold that this Court is without jurisdiction to entertain relators’ application for writ of mandamus. This has been evident from the very beginning.
*799Even if it can be argued that mandamus is the proper remedy, it has been said that mandamus must be pursued in the lower courts unless urgent necessity calls for the exercise of the original jurisdiction of the court of last resort. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515 (Tex.1930).
Only recently in Dickens v. Court of Appeals for Second Supreme Judicial District, 727 S.W.2d 542 (Tex.Cr.App.1987), this Court noted the mandamus jurisdiction of the Courts of Appeals. V.T.C.A., Government Code, § 22.221(b) (formerly Article 1824, V.A.C.S.). See also State v. Wester gren, 707 S.W.2d 260 (Tex.App.-Corpus Christi 1986) (holding Courts of Appeals are vested with jurisdiction to issue writs of mandamus in both civil and criminal matters); Thi Van Le v. Perkins, 700 S.W.2d 768 (Tex.App.-Austin 1985); Gibson v. Marsh, 710 S.W.2d 107 (Tex.App.-El Paso 1986) (mandamus action for fees for appointed counsel in a criminal case interpreting Article 26.05, V.A.C.C.P.).
Further and most importantly, Article V, § 8 of the Texas Constitution provides that the district court and the judges thereof “shall have power to issue writs of habeas corpus, mandamus, injunction and certio-rari, and all writs necessary to enforce its jurisdiction ... The District Court shall have appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law_” (Emphasis supplied.) See Anderson v. Ashe, 99 Tex. 447, 90 S.W. 872 (1906) (district court held to have jurisdiction of a mandamus proceeding to compel a county auditor to sign a warrant); Denman v. Coffee, 42 Tex.Civ.App. 78, 91 S.W. 800 (1905); Alice National Bank v. Edwards, 383 S.W.2d 482 (Tex.Civ.App. 1964) ref., n.r.e.
The general mandamus authority of the district court covers both civil and criminal law matters. The district court (248th District) which issued the orders for the payment of the fees is a constitutional district court with jurisdiction over both civil and criminal cases.
Under current and past constitutional provisions the Court of Criminal Appeals has had general, and unlimited jurisdiction to issue original writs of habeas corpus. Article V, § 5, Tex.Const.; State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892 (1961); Ex parte Morris, 171 Tex.Cr.R. 499, 352 S.W.2d 125 (1961). However, it has long been the policy of the Court not to entertain jurisdiction to grant original writs of habeas corpus except in extraordinary cases, 38 Tex.Jur.3rd, Extraordinary Writs, § 62, 121, and cases there cited. See also Ex parte Krupps, 712 S.W.2d 144 (Tex.Cr.App.1986) (Concurring Opinion). And it has been said that the Court of Criminal Appeals will not issue original writs where other courts have jurisdiction to do so. See, e.g., Ex parte Phelper, 433 S.W.2d 897 (Tex.Cr.App.1968); Ex parte Crosley, 548 S.W.2d 409 (Tex.Cr.App.1977); 38 Tex.Jur.3rd, Extraordinary Writs, § 62, pp. 125-126.
There is no reason why this policy should not be continued and also applied where the extraordinary writ of mandamus is involved. If mandamus is a proper remedy, then why should not the relators seek that remedy in the very district court whose orders they seek to enforce? Thus even if it could be validly argued that this Court has jurisdiction I would deny the mandamus application since such action would be within this Court’s sound discretion and because of Court policy, and because of the lack of urgent necessity to involve a court of last resort for 254 counties as a clearing house for all local monetary disputes.
There are, of course, other reasons why the writ of mandamus should not issue in this instant case. “The modern writ of mandamus is an order issued by a court of competent jurisdiction requiring some inferior court, official, corporation, or board to perform a duty compelled by law.” 38 Tex.Jur.3rd, Extraordinary Writs, § 114, p. 238. (Emphasis supplied.) Mandamus is an extraordinary remedy, and its issuance rests largely in the court’s discretion. It has been described as a summary, harsh and drastic remedy. Fenner v. Brockmoller, 404 S.W.2d 369 (Tex.Civ.App.-El Paso 1966).
*800To obtain relief by writ of mandamus a relator must establish (1) that the act he seeks to compel is ministerial, rather than discretionary in nature, and (2) no other adequate remedy at law is available. State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978). The relator must make a clear showing that under certain facts, the law is subject to but one interpretation, and he then must show that undisputed facts exist which entitled him unequivocally to a right flowing from that single interpretation. Knowles v. Scofield, 598 S.W.2d 854 (Tex.Cr.App.1980).3 Mandamus lies only where there are no undisputed facts and the duty of the public official to act is clear, Bigham v. Sutton, 565 S.W.2d 561 (Tex.Civ.App.-Austin 1978). It will not issue to enforce a duty that is any degree debatable. In re Corrugated Container Antitrust Litigation, 614 F.2d 958 (5th Cir.1980), cert.den.sub.nom. Mead Corp. v. Adams Extract Co., 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980); State ex rel. Wade v. Mays, 689 S.W.2d 893, 898 (Tex.Cr.App.1985). “It has been said that mandamus is but the ‘means’ or ‘execution’ to enforce the judgment in favor of those to whom the writ has been awarded, that its function is to execute, not to adjudicate, and that mandamus does not function to establish as well as enforce, a claim of uncertain merit.” 38 Tex.Jur.3rd, Extraordinary Writs, § 115, pp. 240-241. (Emphasis supplied.) See also Mitchell v. Ramfield, 523 S.W.2d 456 (Tex.Civ.App.-Austin 1975); Smith v. McCoy, 533 S.W.2d 457 (Tex.Civ.App.1976) writ dism’d w.o.j.; Bigham v. Sutton, supra.
Relators have filed sworn pleadings setting forth their contentions with exhibits and a brief. The respondents have answered in response to this Court’s order. This Court does not take testimony. Ex parte Rodriguez, 169 Tex.Crim.R. 367, 334 S.W.2d 294 (Tex.Cr.App.1960). Thus the decision before this Court is being decided without testimony. “In mandamus actions greater certainty of the pleadings and the facts to be established by mode appropriate in appellate court [is] required_” Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex.Cr.App.1982). There is greater strictness in the pleadings, and when the mandamus application is made to an appellate court which has limited fact-finding abilities, the writ must not depend on the determination of a doubtful question of fact. Kopeski v. Martin, supra, at p. 745.
The record before this Court indicates an ongoing local controversy about the possible excessiveness and unreasonableness of fees ordered paid appointed counsel in criminal cases by some of the district judges in Harris County. This has apparently led to the action taken by the “Board of District Judges Trying Criminal Cases” acting under Article 200a-l, V.A.C.S., and as described in the majority opinion. The respondent County Auditor, appointed by all the district judges in Harris County, has found himself caught between conflicting orders and with certain statutory duties to perform. See, e.g., Article 1660, V.A.C.S. The other respondents, the members of the Commissioners’ Court, have paid the only bills approved by the County Auditor and presented to them. Without such approval they would not be authorized to order payment of other accounts and bills. See Article 1660, supra.
The facts available from this record need not be rehashed here. Considering all of the allegations and the duties of the respondents, their remaining right to legally test the reasonableness of the unpaid balances claimed due to the relators, questions of law and fact are provoked which clearly indicate that more than a ministerial duty on the part of the respondents is here involved. See and cf. Lovell v. Bynum, 315 S.W.2d 20, 24 (Tex.Civ.App.-Austin *8011958).4 The mandamus action, if proper, could also be denied on this ground alone.
The majority admits there are other remedies available to the relators but they are not “equally as convenient, beneficial and effective as mandamus” providing “the same swift, exact and sure relief.” No other remedy need apply. Nothing is as swift, convenient and effective as a writ of mandamus from the Court of Criminal Appeals to collect money.
In arriving at its conclusion the majority fears the construction of Article 26.05, supra, by a civil court and expresses its underlying concern that any civil judgment would be appealed to a Court of Appeals and there would be no “appeal from the court of appeals to this Court in that civil suit,” and the Court of Appeals would have no precedent from this Court to guide it in passing on this criminal law. Considering that the majority just construed a civil statute (Article 200a-l, V.A.C.S.) and held it inapplicable without any precedent or guidance from the Supreme Court of Texas as the final arbiter of civil law matters, its reasoning would be laughable if it was not so tragic.
Exceeding the mandamus jurisdiction of this Court, the majority has set itself up as a Super Board of Judges to pass on all local monetary disputes over fees paid court-appointed counsel and all other civil matters involving a criminal law.
“I know of only one authority which might justify the suggested method of construction:
“ ‘When I used a word’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,' said Alice, ‘whether you can make words mean so many different things.’ ‘The question is’ said Humpty Dumpty, ‘which is to be master — that’s all.’ ” Lord Atkin, Liversidge v. Anderson [1942] A C 206, 245 Quoting Lewis Carroll, Through the Looking Glass, Chapter 6.
The majority should keep in mind the words of Justice Jackson in Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469, 533 (1953):
“We are not final because we are infallible, but we are infallible only because we are final.”
I dissent to the action of the majority with the greatest concern over the lack of judicial discipline and restraint.5
. The language contained in Article V, § 5, supra, from 1891 until the 1977 amendment provided in pertinent part:
“The Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its jurisdiction_” (Emphasis supplied.)
. The rewording of the constitutional amendment was not undertaken to change the nature of the limitation upon this Court’s authority to issue writs of mandamus, but to address the concern of many lawyers as expressed in this writer’s concurring opinion in Thomas v. Stevenson, supra, that the wording of the 1977 amendment may have clouded the previous unlimited authority of this Court to issue the writ of habeas corpus.
. In Texas Department of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Cr.App.1981), it was stated:
"An act is said to be [subject to extraordinary relief] where the law clearly spells out the duty to be performed by an official and does so with such certainty that nothing is left to the exercise of discretion or judgment. Forbes v. City of Houston, 356 S.W.2d 709 (Tex.Cr.App. 1962).”
. It is observed that the majority has not to construe and interpret Article 200-1, V.A.C.S., a matter of first impression in order to adjudicate the issue before the Court in this “mandamus” action.
. See Ex parte Michael Henslee, 715 S.W.2d 361 (Tex.Cr.App.1986). See and cf. Ex parte Krupps, 712 S.W.2d 144, 151 (Tex.Cr.App.1986) (Concurring Opinion, Onion, P.J.).