ON APPELLANT’S motion for rehearing
GRAVES, Presiding Judge.On the original submission we declined to consider the attack made upon the constitutionality of Article 802, V.A.P.C., as amended by the 53rd Legislature, upon the theory that if the amendment was void the conviction could be sustained under Article 802, V.A.P.C., as it existed prior to the amendment.
In this we were in error for the reason that under the former act there is no authority for the imposition of a jail term of less than ten days. Since the appellant’s punishment was assessed at three days in jail and a fine of $50.00, the judgment of conviction cannot be upheld unless the amended act is valid.
The amendment of Article 802, V.A.C.P., by Act of the 53rd Legislature, page 480, Chapter 167, provides for a mandatory jail term of not less than three days nor more than two years in addition to a fine, and contains the following proviso:
“Provided, however, that the presiding judge in such cases at his discretion may commute said jail sentence to a probation period of not less than six (6) months.”
To commute punishment means to change it from that assessed against a convicted defendant into a less severe one.
If the quoted language of the amending statute means commutation, the provision is in violation of the Constitution, which vests the power to grant reprieves and commutations of punishment and pardons in the Governor, on recommendation of the Board of Pardons and Paroles. Constitution of Texas, Article *477IV, Section 11 (adopted November 3, 1936) ; Ex parte Miers, 124 Texas Cr. Rep. 592, 64 S.W. 2d 778; Snodgrass v. State, 67 Texas Cr. Rep. 615, 150 S.W. 162; Snodgrass v. State, 67 Texas Cr. Rep. 648, 150 S.W. 178.
In Ex parte Hayden, 152 Texas Cr. Rep. 517, 215 S.W. 2d 620, we held that the terms of Article 781b, C.C.P., (the Adult Probation and Parole Law) had no application except in those cases where a sentence had been made mandatory by the legislature. Such has not been done in those cases denounced by the article in question here. Any holding consistent with the Hayden case would necessarily hold the above proviso unconstitutional.
It therefore remains to be determined whether the statute in question amending Article 802, P.C., in regard to the punishment to be assessed, may be upheld without the unconstitutional provision for commuting the punishment.
The rule appears to be that in the absence of a severability clause, if the unconstitutional part is stricken and that which remains is complete in itself and capable of being executed in accordance with the legislative intent, the remainder must be sustained.
In Smith v. State, 158 Texas Cr. Rep. 410, 256 S.W. (2d) 109, in discussing the help we might receive from an emergency clause, we said:
“* * * But such clause often provides a window through which we may glimpse the intent of the Legislature.”
The emergency clause of the amendment now under consideration reads, in part, as follows:
“The crowded condition of the calendar and the fact that the present law does not make mandatory a jail sentence, creates an emergency and an imperative public necessity. . . .”
We conclude from this that the prime purpose of the legislature was to make a jail sentence mandatory and that the provision as to commutation was only incidental thereto.
If we are mistaken in this, the legislature may, of course, at the session which is soon to convene make such changes in *478the law as they see fit which are consistent with the holding herein.
We hold that the proviso which authorizes commutation of the jail sentence is unconstitutional and inoperative but that the remainder of the act is valid.
It necessarily follows from our disposition of this question that the appellant’s motion for rehearing should be overruled. It is so ordered.