¶1(dissenting on Motion for Rehearing).
¶2Under the majority opinion a defendant is entitled to have his conviction in a capital case set aside by the mere showing that his court-appointed counsel was at the time of his appointment delinquent in the payment of his membership dues to the State Bar; this wholly without regard to the competency, experience, skill and ability of the lawyer and despite the fact that such lawyer was at the time practicing law and representing clients who employed him before the same court, the judge being without notice or reason to believe that the lawyer had failed to pay his State Bar dues.
¶3*105Under the rule heretofore followed by this court, only matters appearing in the record made in the trial court and those which attack its jurisdiction are to be considered on an appeal. Under this rule the question of court-appointed counsel’s failure to pay his bar dues is not before us. See 4 Texas Jur., Appeal and Error Criminal Cases, Secs. 127-8, and cases there cited.
¶4There is a vast difference between suspending the privilege of an attorney to practice his profession while he is delinquent in the payment of his dues and the setting aside of a conviction because the attorney who was called upon by the trial judge to represent an indigent accused had, unknown to the judge, been dropped from the State Bar roll of practicing attorneys.
¶5Appellant’s court-appointed counsel had only to pay his dues that were delinquent (which no doubt he has done) to have his name restored to the roll of practicing attorneys. His delinquency in the payment of his bar dues is in no wise detracted from or affected his representation of his client.
¶6I respectfully dissent.