Driving an automobile upon a public highway while intoxicated is the offense; penalty assessed at confinement in the county jail for 60 days and the prohibition against driving any motor vehicle upon the highways of the State for a period of two years.
Since the rendition of the former opinion (which was delivered June 2, 1937) we have reached the conclusion that Art. 802a, Vernon's Ann. P. C., has been repealed by Chapter 466, Acts of the 44th Legislature, Second Called Session, which provides that the license of one who operates an automobile while intoxicated shall be automatically suspended for a period of six months upon the first conviction.
In the present case, the court instructed the jury to add to their verdict the length of time appellant should be prohibited from driving any motor vehicle on the highways of this State, not to exceed two years. This instruction followed the provisions of Art. 802a, supra, which, as we have observed, has been repealed. The jury returned a verdict prohibiting appellant from driving a car upon the highways of the State for a period of two years, which was unauthorized, as the period of suspension was six months for the first offense. Under the circumstances, we are constrained to order a reversal of the judgment. See D. E. Harris v. State, No. 18,951, in which an opinion is this day delivered. (Page 126 of this volume.)
The former opinion of affirmance is withdrawn and the judgment is now reversed and the cause remanded.
Reversed and remanded. *Page 131
ON MOTION FOR REHEARING.