The opinion
On Appellants Motion for Rehearing
WOODLEY, Judge.
Appellant has filed a well prepared and well reasoned brief in support of his contention that the holding of this Court in Gilderbloom v. State, 272 S.W.2d 106 , is wrong and that the entire act amending Art. 802, V.A.P.C., is invalid.
It will be observed that appellant pleaded guilty and was assessed a punishment applicable to Art. 802, V.A.P.C., prior to its amendment and, if the amending statute is invalid as a whole, this conviction woúld be upheld under the prior act.
The dissenting opinion of Judge DAVIDSON and appellant’s brief in support of his motion for rehearing are much in line with the thinking of the writer when the Gilder-bloom opinion was handed down. However, a majority of the Court agreed that the intent of the Legislature could be determined from the act, which was that the compulsory jail term portion was the prime purpose, and the provision as to commutation or probation was only incidental. The legislature would not, therefore, have failed to enact the amendment providing for a compulsory jail term though they had known that the provision for commutation was invalid.
The decision in the Gilderbloom case became final while Judge Graves was a member of the Court, and has since, been fol- . lowed by this Court and in trial courts. The writer believes that the holding as to the legislative intent should not now be overruled.
In any event, this appeal is not controlled by the soundness or unsoundness of the Gilderbloom opinion because, if the entire amendment of Art. 802, V.A.P.C. was void, nevertheless the court did not err in accepting appellant’s plea of guilty and assessing his punishment at a fine of $125.00 and 30 days in jail. Under neither theory would probation, suspension of sentence or commutation be applicable.
Appellant’s motion for rehearing is overruled.