This case was affirmed at a former day of this term, and appellant has filed a motion for rehearing, in which he calls our attention to the order of the Commissioners Court levying the county occupation tax. In the bill of exceptions no objection is reserved that the tax was levied at a special session of the Commissioners Court and not at a regular term, and the bill of exceptions does not show this to be a fact. However, by referring to the statement of facts it is made to appear that the order levying the county occupation tax was made at a called session of the Commissioners Court held on the 13th day of September.
Article 1540 of the Revised Civil Statutes provides: "No county tax shall be levied except at a regular term of the court and when all the members of said court are present." This objection not having been urged at the time of the introduction of the order, ordinarily appellant could not avail himself of it at this time, but inasmuch as it took an order of the court to levy the tax, and this order being made at a term when the court was not authorized to make it, no levy has been legally made, and the county would not be authorized to collect the tax. Consequently only the State tax was due at the date of the institution of this prosecution, and the court erred in authorizing the jury to assess a fine equal to both the State and county tax, and the verdict of the jury is unauthorized in law in assessing as a part of the punishment the county tax. In a civil suit the court would be authorized to reform the judgment, but no such authority has been conferred on this court by the Legislature. Therefore, for the error in the charge authorizing the jury to assess the amount of the county tax as a part of the punishment, and the jury so doing in their verdict, the motion for rehearing must be granted, the judgment of affirmance set aside, and the cause reversed and remanded on account of this error, it being made to appear no county tax has ever been legally levied.
The judgment is reversed and the cause is remanded.
Reversed and remanded. *Page 431