This is a conviction for driving while intoxicated, with punishment assessed at a fine of $200 and sixty days in jail.
The record affirmatively reflects by bill of exception that before the jury was empaneled and the case tried the trial court sustained the motion of the state to instruct the attorney for the appellant not to mention or make reference, during the trial, to the fact that the license of appellant to operate a motor vehicle over the highways of this state would be automatically suspended by the Texas Department of Public Safety in the event he was found guilty. In other words, the attorney for the appellant was forbidden, precluded, and denied the right and privilege at any time during the trial to call the jury’s attention to the fact that in the event they found the appellant guilty his license to operate a motor vehicle would be automatically suspended and that such suspension would be a part of the punishment inflicted.
*378In its brief, the state makes no effort to sustain or justify the trial court’s action or to cite this court any authority supporting that action. The state’s only answer is an endeavor to defeat the bill of exception and to prevent us from passing upon the question presented.
Art. 802, Vernon’s P.C., fixes the penal punishment for drunk driving at confinement in jail for not less than three days nor more than two years and by a fine of not less than $50 nor more than $500.
The civil punishment inflicted and automatically applied upon conviction for the offense of drunken driving is the suspension of the license to operate a motor vehicle for a period of six months. Art. 6687b, Sec. 24(a), subd. 2(b).
The penal and civil punishments are inflicted only upon the jury’s finding of guilt.
There was a time in this state when the jury in drunken driving cases determined whether the license of the accused to operate a motor vehicle was or was not to be suspended as a part of the punishment for the unlawful act.
With the enactment of the present statute (Art. 6687b, Vernon’s R. C. S.), the right was taken from the jury to order a suspension of the license and, instead, provision was therein made that the license of any person would be automatically suspended at least six months upon conviction for driving a motor vehicle while under the influence of intoxicating liquor. Art. 6687b, Sec. 24, supra.
In Taylor v. State, 151 Texas Cr. Rep. 568, 209 S.W. 2d 191, there was before this court the contention that the automatic suspension of the license was a civil matter and was no part of the punishment for drunken driving and therefore that suspension of the license could not be inflicted in a criminal proceeding. In overruling that contention, we said:
“The right to drive a motor vehicle upon the public highways is a privilege and not a right. It is governed by certain rules and regulations, both different and varied. This privilege is given to some and refused others. Such action is usually based upon the broad principle of the safety of the public. The driving on such highways by a drunken person is denounced as an offense, and a punishment is provided for such driving. A portion of the *379punishment is the automatic revocation of the privilege of driving on such highways for a period of six months. See Art. 6687b, sec. 24, Vernon’s Ann. Texas Civ. Stat., Vol. 19. This revocation, as a portion of the punishment, comes under the police power for the protection of the public safety as well as an effort to deter drunken persons from becoming a hazard on the public highways. The jury’s verdict could not direct that such license be not suspended. See Beach v. State, 150 Texas Cr. Rep. 193, 199 S.W. 2d 1020; McIntire v. State, 135 Texas Cr. Rep. 285, 117 S.W. 2d 1093.
“The penalty for drunken driving is not only a fine, but is a fine and the loss of the privilege of driving a motor vehicle for a period of six months.”
It is apparent, therefore, that the automatic suspension of the license is a part of the punishment inflicted, as a matter of law, upon a conviction for drunken driving. When the legislature at one time placed in the hands of the jury a determination of the suspension of the license they recognized the suspension as a part of the punishment. The fact that the legislature made the suspension automatic did not change its status as being a part of the punishment. '
The amount of punishment to be assessed within the limits prescribed by law is peculiarly within the province of the jury. Venn v. State, 105 Texas Cr. Rep. 19, 284 S.W. 955.
The courts take judicial knowledge of the statutes of the state, and therefore the fact that the license to drive is suspended by operation of law, upon conviction for driving while intoxicated, becomes and is a matter of common knowledge. Such fact is as much before the court and the jury as is any other fact.
Art. 1, Sec. 10 of our Constitution guarantees to every citizen and to this appellant — among other things — the “right of being heard by himself or counsel, or both * *
In Gutierrez v. State, 96 Texas Cr. Rep. 327, 257 S.W. 889, we said that a proper comment upon any evidence legitimately before the jury is an incident of the right of one accused of crime to be represented by counsel. Such, also, was the holding in Zimmer v. State, 64 Texas Cr. Rep. 114, 141 S.W. 781, to the effect that an accused is entitled to the benefit of argument by his counsel upon any and all of the facts in the case.
*380There is no escape, here, from the conclusion that the trial court not only prevented appellant’s counsel from interrogating the prospective jurors upon the question of penalty but, in addition thereto, denied counsel the right to argue before the jury material facts and his views of the punishment that should be inflicted upon the appellant in the event of his conviction.
The curtailment and denial of his right operated to defeat the constitutional guarantee of representation by counsel and constituted a denial of due process.
The cases of Chapman v. State, 66 Texas Cr. Rep. 489, 147 S.W. 580, and Reeves v. State, 34 Texas Cr. Rep. 483, 31 S.W. 382, support the conclusion reached.
While it may not be material, the fact nevertheless remains that the appellant was assessed punishment in excess of the minimum the jury were here authorized to inflict.
For the errors stated, the judgment is reversed and the cause is remanded.