The conviction is under a complaint and information charging the driving of an automobile upon a public highway “at an unreasonable and imprudent speed under the conditions then existing, to-wit, 90 miles per hour * * * ” A jury being waived, the court assessed a $50 fine.
The transcript contains no appeal bond or recognizance on appeal, though it appears that appellant was released upon a recognizance.
Under the circumstances this court is without jurisdiction. Bell v. State, 137 Tex.Cr.R. 128, 128 S.W.2d 812; Reid v. State, Tex.Civ.App., 289 S.W.2d 237.
The appeal is dismissed.
On Appellant’s Motion to Reinstate Appeal
DICE, Commissioner.Appellant has entered into a proper appeal bond and the appeal is reinstated and will be considered.
Appellant’s sole contention is that Art. 827a, Sec. 8, Vernon’s Ann.P.C., as amended, Acts 1951, Chapter 346, H.B. 458, Sec. 1, 52nd Legislature, Regular Session, under which he was convicted, is unconstitutional and, therefore, his conviction cannot stand.
We need not pass upon the constitutionality of the statute as amended in 1951 by the 52nd Legislature and as further amended in 1955 by the 54th Legislature, Regular Session, Ch. 488, p. 1221, in view of the allegations of the complaint and information and the stipulation in the record that the appellant, on or about the date alleged in the information, drove a motor vehicle upon a public highway in this state at a speed in excess of sixty miles per hour. Under such stipulation, it was shown that appellant violated the provisions of the statute as amended in 1941 limiting the speed of motor vehicles driven upon the public highways of this state. Art. 827a, Sec. 8, Vernon’s Ann.P.C., Acts of 1941, 47th Legislature, Ch. 506, Sec. 1, page 817. The information, among other things, alleged that appellant drove a motor vehicle upon a public highway in this state at a speed of 90 miles per hour, which was sufficient to charge a violation of the statute under the 1941 amendment and prior to its amendment in 1951 and 1955.
Under the rules of statutory construction, if the amendatory acts of 1951 and 1955 were held to be unconstitutional they did not repeal the provisions of the statute then existing.
It is the general rule that an invalid or unconstitutional act cannot repeal a valid statute. 39 Tex.Jur. Sec. 70, p. 134; Venn v. State, 85 Tex.Cr.R. 151, 210 S.W. 534; and State ex rel. Garza v. Rodriguez, Tex.Civ.App., 213 S.W.2d 877. Further, where an amendment to an act is declared invalid the original act remains in full force and effect. Consolidated Underwriters v. Kirby Lumber Co., Tex.Com.App., 267 S.W. 703; and State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550.
We are unable to agree with appellant’s contention that the act of 1941 was repealed under the general repealing clause in the act of 1951, even though the amenda-tory provision of the later act be invalid and unconstitutional.
The rule in construing acts or clauses purporting to repeal other statutes is to give effect to the intention of the Legislature. Galveston & W. Ry. Co. v. City of Galveston, 96 Tex. 520, 74 S.W. 537; Parshall v. State, Tex.Cr.App., 138 S.W. 759; and Pioneer Oil & Refining Co. v. State, Tex.Civ.App., 273 S.W. 615. *833In 39 Tex.Jur. Sec. 70, at page 134, the rule is stated as follows:
"Where a clause repealing an act is inserted in a later act in order to secure its unobstructed operation, and it is not clear that the Legislature intended to repeal the old act except upon the supposition that the new act would take its place, the repealing clause is properly held to fall with the act of which it is a part.”
The act of 1951 did not expressly repeal the 1941 act but provided that Section 8 of the act be re-enacted and amended.
We do not think it was the intention of the Legislature, by including the general repealing clause within the act of 1951, to repeal the act of 1941 except upon the supposition that the new act would be valid and take its place. To hold otherwise would require us to conclude that in passing the act of 1951, it was the intention of the Legislature that in the event the act was invalid there would be no statute regulating the speed of motor vehicles driven upon the public highways of this state. We conclude that such was not the Legislative intent.
Since appellant’s conviction may be sustained under the provisions of the statute prior to the amendments in 1951 and 1955, it does not become necessary to pass upon his contention herein presented. Ex parte Heartsill, 118 Tex.Cr.R. 157, 38 S.W. 2d 803; Rotner v. State, 122 Tex.Cr.R. 309, 55 S.W.2d 98; Gilderbloom v. State, 160 Tex.Cr.R. 471, 272 S.W.2d 106.
The judgment is affirmed.
Opinion approved by the Court.