dissenting.
The question posed by this case is whether the Court of Criminal Appeals may utilize the 1985 amendment to Article 37.10, V.A.C.C.P., in a post-conviction writ of ha-beas corpus proceedings under Article 11.-07, V.A.C.C.P., and reform a jury’s verdict in 1980 which was void from its inception.
The majority says it can be done. I do not agree.
The applicant was charged with aggravated robbery in Cause No. 314984 in the 262nd District Court. In addition to the proper range of punishment for the first-degree felony charged where a prior felony has been alleged and proved, Y.T.C.A., Penal Code, § 12.42 (1974), the court in its jury charge authorized the jury to return a fine not to exceed $10,000.00. The jury instruction as to fine was improper. It was not a valid punishment. See Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983). The jury returned a verdict on June 17, 1980, assessed 50 years’ imprisonment in the Department of Corrections and also assessed a $10,000.00 fine. When the jury verdict was accepted and the jury discharged on the same date, the verdict was void at its inception. The judgment that was subsequently entered and which had to be based on the verdict was also void as well as the sentence based on the judgment. See Article 42.01 and 42.02, Y.A.C. C.P., in effect at the time. Thus applicant’s conviction was void.
Appellant appealed his 1980 conviction for aggravated robbery (Cause No. 314984) to the Court of Criminal Appeals, and it was filed as Cause No. 68,733. Only one ground of error was raised which concerned the admission into evidence of certain State’s exhibits. The improper assessment of punishment was not mentioned. The conviction was affirmed on November 9, 1983 in an unpublished per curiam opinion which did not consider the assessment of punishment. This was prior to the Bo-gany decision.
We now know that in situations such as applicant’s appellate courts, at least prior to the 1985 amendment to Article 37.10, supra, could not reform the jury’s verdict. Bogany v. State, supra. Nor could the Governor, using his constitutional powers of clemency, make things right. Ex parte Spaulding, 687 S.W.2d 741 (Tex.Cr.App.1985). All the King’s men and all the King’s horses could not put Humpty Dumpty together again. Lewis Carroll, “Alice in Wonderland.”
On May 3, 1985, applicant filed his post-conviction writ of habeas corpus in the convicting district court. See Article 11.07, V.A.C.C.P. He sought the same relief as Bogany and Spaulding and company.1 The judge of the convicting court entered an order recommending that such relief be denied in Cause No. 314984. The record was transmitted to this Court and received on May 29, 1985. On June 19, 1985, eight days after the effective date of the 1985 amendment to Article 37.10, this Court ordered the habeas corpus proceedings to be filed and submitted.
In response to the overreaction to Boga-ny by some, the Legislature amended Article 37.10, V.A.C.C.P., by adding subsection (b), which reads:
“(b) If the jury assesses punishment in a case and in the verdict assesses both punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense, the court shall reform the verdict to show *610the punishment authorized by law and to omit the punishment not authorized by law. If the trial court is required to reform a verdict under this subsection and fails to do so, the appellate court shall reform the verdict as provided by this subsection.” (Acts 1985, 69th Leg., p. 3009, ch. 442, S.B. 1349, effective June 11, 1985.)
Does this 1985 Act apply to the 1980 verdict? Can it be applied retroactively? That is the question.
Article I, § 16, Texas Constitution, provides:
“No bill of attainder, ex post facto low, retroactive law, or any law impairing the obligations of contracts, shall be made.”
In the Interpretive Commentary to Article I, Sec. 16, of the Texas Constitution (Vol. I, pp. 371, 372, Vernon’s Constitution of the State of Texas, Annotated), it is written:
“An ex post facto law, constitutionally speaking, is one that makes an action done before the passage of the law, and which was innocent when done, criminal, and punishes such action, De Cordova v. Galveston, 4 T. [Tex.] 470 (1849); that aggravates a crime, or makes it greater than it was when committed, Holt v. State, 2 T. [Tex.] 363 (1847); that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed, Holt v. State, supra; or which changes the rules of evidence, and receives less or different testimony, than the law required at the time of the commission of the offense in order to convict the offender. Holt v. State, supra. Although ordinarily laws changing procedure are not within the inhibition, still if a procedural change is retroactive and results in depriving the accused of substantial protection, it is unconstitutional. Ex parte Roper, 61 [Tex.] Cr.R. 68, 134 S.W. 334 (1911).
“The Texas Constitution goes further than the United States Constitution for the former is not confined to forbidding ex post facto laws, i.e., retroactive penal legislation, but it also lays a ban on any retroactive law. In prohibiting retroactive laws, the Texas Constitution seeks to safeguard rights not guaranteed by other constitutional provisions such as the impairment of the obligation of contracts and due process of law clauses. Mellinger v. City of Houston, 68 T. [Tex.] 37, 3 S.W. 249 (1887).
“A retroactive law is one meant to act on things that are past. As such, a statute is retroactive which takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes new duties, or adopts a new disability in respect to transactions or considerations already past, and which affects acts or rights accruing before it came into force. Turbeville v. Gowdy, [Tex.] Civ.App., 272 S.W. 559 (1925).”
In 53 Tex.Jur.2d, Statutes, § 29, pp. 49-50, it is written:
“A prospective law is distinguished from one that is retroactive by the fact that the latter affects acts or transactions that occurred before it came into effect, or concerns rights that have already accrued. The constitution prohibits the making of retroactive laws. But the constitutional provision is construed merely as forbidding the enactment of any law that will prejudicially affect existing, vested rights, whether arising out of contract or tort, or the operation of a law in such a manner as to have that effect. The inhibition is not ordinarily extended to a procedural or remedial statute, such as a curative act, or, in fact, to any act that does not disturb or impair vested rights.”
It appears clear then the constitutional inhibition does not ordinarily apply to procedural or remedial statutes unless the individual is deprived of substantial protection, Ex parte Roper, supra, or his rights are impaired.2
*611Entirely apart from any state constitutional impediment, retrospective laws are commonly regarded with disfavor. Hutchings v. Slemons, 141 Tex. 448, 174 S.W.2d 487 (1943); 53 Tex.Jur.2d, Statutes, § 29, p. 51. Generally statutes are not to be applied retroactively. Ex parte Abahosh, 561 S.W.2d 202, 204 (Tex.Cr.App.1978); Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977); Pesch v. State, 524 S.W.2d 299 (Tex.Cr.App.1975). The general presumption is that an act is intended to operate prospectively and not retroactively and any doubt is to be resolved against retroactive application. Ex parte Abell, 613 S.W.2d 255 (Tex.1981); Gov.’ & Personnel Mutual Life Ins. Co. v. Wear, 251 S.W.2d 525 (Tex.1952). A statute will not be applied retrospectively unless it appears by fair implication from the language used in the entire act that it was the intent of the Legislature to make it applicable to both past and future actions. Ex parte Abell, supra, and cases there cited. See also Fed-Mart of Texas, Inc. v. Calvert, 474 S.W.2d 297 (Tex. Civ.App.—Austin 1971); Harvey v. Denton, 601 S.W.2d 121 (Tex.Civ.App.—Eastland 1980, ref. n.r.e.). Manifest intention of the Legislature is controlling circumstance in interpreting a statute as having retrospective or only prospective effect. Deacon v. City of Euless, 405 S.W.2d 59, 61 (Tex.1966); Sloan v. Calvert, 497 S.W.2d 125 (Tex.Civ.App.—Austin 1973).
The language in some of the cases are not always consistent with regard to procedural and remedial matters. Some cases indicate the Legislature must indicate, at least by fair implication, that a statute will be retroactive for it to be such, even with respect to procedural matters. Simpson v. Texas Employers Ins. Assoc., 519 S.W.2d 209, 213 (Tex.Civ.App.—Ft. Worth 1975), and cases there cited. Other cases cite the general rule that statutes will not be given retroactive effect in absence of clearly expressed legislative intent, with a recognized exception where the statute deals with procedural or remedial matters as opposed to substantial rights. Cass v. McFarland’s Estate, 564 S.W.2d 107 (Tex.Civ.App.—El Paso 1978); 53 Tex.Jur.2d, Statutes, § 28, p. 51.
Since there are recognized exceptions to the general rule of the statutory matter, it is procedural or remedial, and does not impair vested rights, Exxon Corporation v. Brecheen, 526 S.W.2d 519, 515 (Tex. 1975); Southwestern Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871, 875 (Tex.Civ. App.—Beaumont 1976), it is observed that unless otherwise provided such procedural or remedial applies to both pending and future actions and becomes operative on the effective date of the legislation. Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978); Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976), cert. den. 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250; Wilson v. State, 473 S.W.2d 532 (Tex.Cr.App.1971). See also Patterson v. State, 650 S.W.2d 453 (Tex.App.—Houston [14th] 1982).
The majority views the 1985 amendment to Article 37.10 as a procedural statute. It also appears remedial. See Pratt v. Story, 530 S.W.2d 325 (Tex.Civ.App.—Tyler 1975). Nevertheless, the rules as to such statutes are generally the same. There is no dispute that the verdict returned against applicant in trial court Cause No. 314984 was void ab initio and that his final conviction based thereon was void, although not legally adjudicated as such prior to said statutory amendment. Without said amendment there would be no question but what he would be entitled to relief the same as Bogany, Spaulding and company. If the 1985 amendment is applied retroactively, applicant will be entirely deprived of that relief. If applied retroactively, then what was a void verdict at its inception in 1980 will now become a valid verdict in 1985 by this Court’s action pursuant to the amendment to Article 37.10 in a post-conviction habeas corpus proceedings under Article 11.07, V.A.C.C.P., initiated by applicant pri- *612or to the effective date of the said amendment.
It is clear that manifest intention of the Legislature is the controlling circumstance in interpreting whether a statute can be applied retroactively or only prospectively. Deacon v. City of Euless, supra; Sloan v. Calvert, supra. Only a glance at the amendment shows that the Legislature intended for the statute to have prospective application only. It provides in part:
“If the trial court is required to reform a verdict under this subsection and fails to do so, the appellate court shall reform the verdict as provided by this section.”
When the verdict in the instant case was returned and accepted and the jury discharged, this amendment or subsection was not in effect. The wording of the amendment clearly indicates the legislative intent that the act was to be utilized by an appellate court only where the trial court was “required to reform a verdict under this subsection” and failed to do so. The amendment not being in effect in 1980, it has no application to applicant’s cause or to the action of this Court on his application for post-conviction writ of habeas corpus.
If the majority is determined to apply the statute retroactively merely because it is procedural in nature, then it must, in fairness to the bench and bar, come to grips with other questions. It must be decided whether such procedural statute has retroactive application to post-conviction habeas corpus proceedings as a pending or future action. It must decide, despite the claimed procedural nature of the statute, whether it deprives the applicant of substantial protection, due process of law, due course of the law of the land (Article I, § 19, Tex.Const.), the constitutional right of trial by jury, and generally whether the Legislature may validate void convictions in such a manner.3
For the reasons stated, I vigorously dissent to the action of the majority. The applicant is entitled to relief.
. See Releford v. State, 683 S.W.2d 385 (Tex.Cr.App.1984); Carey v. State, 677 S.W.2d 821 (Tex.App.—Ft. Worth 1984); Westerholt v. State, 681 S.W.2d 67 (Tex.App.—Houston [14th] 1984—Discretionary Review Refused). See also Diaz v. State, 663 S.W.2d 114 (Tex.App.—Houston [1st] 1983); Henderson v. State, 666 S.W.2d 522 (Tex.App.—Waco [10th] 1983).
. In McCain v. Yost, 284 S.W.2d 898, 900 (Tex.1955), the Supreme Court of Texas stated:
"A statute cannot be said to be a retroactive law prohibited by the Constitution unless it *611can be shown that the application of the law would take away or impair vested rights acquired under existing law.”
. The guarantee of a right to trial by jury in the Sixth Amendment, United States Constitution, is made applicable to the States by the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Article I, § 10 of the Texas Constitution provides that an accused in a criminal prosecution shall have a speedy public trial by an impartial jury. Article I, § 15 of the said State Constitution provides that the right of trial by jury shall remain inviolate. See also Article 1.12, V.A.C. C.P.; 35 Tex.Jur.2d, Jury, § 9, p. 45. When the jury is to assess punishment under Article 37.07, V.A.C.C.P., the jury must assess in their verdict the punishment intended to be imposed where it is not otherwise fixed by law. Under these circumstances assessment of punishment is exclusively within the province of the jury. See 57 Tex.Jur.2d, Trial, § 393, p. 28.
It has been fundamental that a trial judge does not have the authority to receive a jury’s verdict and then refuse to abide by it. Hardy v. State, 261 S.W.2d 172 (Tex.Cr.App.1953), nor change the verdict in any material part, Champion v. State, 19 S.W.2d 63, 65 (Tex.Cr.App. 1929), nor give effect to part of the verdict and ignore some other part and enter another and different judgment from that called for by the jury’s verdict. Combes v. State, 162 Tex.Cr.R. 482, 286 S.W.2d 949 (1956); King v. State, 135 Tex.Cr.R. 71, 117 S.W.2d 800 (1938).
Castro v. State, 118 Tex.Cr.R. 53, 42 S.W.2d 779 (1931), held void the trial court’s action in disregarding (upon the State’s motion) the recommendation of the jury that the sentence be suspended. There this Court held the action of the trial court violated the
"... fundamental principle that the judge presiding over a trial has no right and no power to change a verdict rendered by the jury unless with their consent and before their discharge. The rights of the accused, under such circumstances, to have the judgment follow the verdict, if formal and agreeable to the issues submitted, is absolute_”
In Smith v. State, 479 S.W.2d 680 (Tex.Cr.App.1972), the court on its own, struck a portion of the punishment assessed by the jury. Since the verdict assessed an unauthorized punishment, the verdict was held void at its inception and that the trial court had no authority to change the verdict by deleting the offending portion. See also McIver v. State, 586 S.W.2d 851 (Tex.Cr.App.1979).