(concurring).
I concur that the judgment should be affirmed but for the following reasons.
The conviction is for sale of merchandise on city sidewalks in violation of Section 41-10, Houston City Ordinances.
The record reflects that on November 23, 1973, appellant sold jewelry on a sidewalk in the downtown area of Houston.
He contends that he was authorized to sell merchandise on the Houston streets and sidewalks under Section 22-1, Houston City Ordinances, as an itinerant vendor. That section is expressly limited to persons who sell merchandise from a “truck or other vehicle on the streets of the city, or who hire, rent, lease or occupy any room or space in any building, structure, or other enclosure, vacant lot or any other property whatever in the city.” It does not authorize the sale of merchandise on sidewalks of the city.
Appellant next contends that Section 41-10, Houston City Ordinances, violates the equal protection clause of the Fourteenth Amendment. He urges that there is no rational justification for the exemption of flower and ice cream vendors from the prohibition against sidewalk sales of merchandise under Sections 41-10 and 41-10.1, Houston City Ordinances. Section 41-10 provides:
“It shall be unlawful for any person to expose for sale or to sell on any sidewalk, street, parkway, esplanade or any other property open or devoted to public use in the city any fruits, vegetables, nuts, candies, cigars, tobacco, soda water, or any foodstuffs of any nature whatsoever, or any other goods, wares, or merchandise, either exposed or enclosed in boxes, crates, barrels, baskets or any other container. It shall further be unlawful to erect, construct, build, maintain or occupy any booth, stand or other structure, either permanent or temporary, upon any sidewalk, street, parkway, esplanade or other property open or devoted to public use for the purpose of carrying on or furthering any private business, enterprise, calling, vocation or .profession. This provision shall not apply to any person selling frozen desserts from sanitary vehicles approved by the director of public health under section 19-550 of this Code, . . . ”
Section 41-10.1, Houston City Ordinances, provides:
“(a). Section 41-10 hereof shall not apply to any person who has obtained a license for the sidewalk sale of flowers to pedestrians and who complies with the provisions of this section regulating the sale of such flowers.”
A serious question about the justification for the exemption of flower and ice cream vendors is raised. See Dukes v. City of New Orleans, 501 F.2d 706 (5th Cir. 1974), and the cases there cited. However, it is not necessary to decide whether Section 41-10 is unconstitutional. Assuming that appellant was in an area of the city per*715mitting the sale of flowers and ice cream and assuming, without deciding, that a different treatment afforded ice cream and flower vendors under Sections 41-10 and 41-10.1 violates the equal protection clause of the Fourteenth Amendment, appellant as well as ice cream and flower vendors would be subject to prosecution under Section 41-10.
In Delorme v. State, 488 S.W.2d 808 (Tex.Cr.App.1973), this Court wrote:
“It is the duty of the court, if it can be done, to construe a statute so that it will remain valid. Where a statute contains words or provisions which are valid and others which are not, effect should be given to the valid words and provisions by separating them from the invalid ones. Ohio Oil Company v. Giles, 149 Tex. 532, 235 S.W.2d 630 (1950); Zwernemann v. Von Rosenburg, 76 Tex. 522, 13 S.W. 485 (1890); and Ex parte Towles, 48 Tex. 413. If the unconstitutional or void portion of any statute be stricken out and that which remains is complete in itself and capable of being executed in accord with the apparent legislative intent, wholly independent of that portion which is rejected, the statute must be sustained. Salas v. State, 365 S.W.2d 174 (Tex.Cr.App. 1963). This is true, even though the statutory enactment contains no severa-bility clause. Salas v. State, supra, and Gilderbloom v. State, 160 Tex.Cr.R. 471, 272 S.W.2d 106 (1954).”
See also Tussey v. State, 494 S.W.2d 866 (Tex.Cr.App.1973); Ex parte Rubin, 362 S.W.2d 331 (Tex.Cr.App.1962); Fletcher v. State, 439 S.W.2d 656 (Tex.Sup.Ct. 1969); State v. Scott, 460 S.W.2d 103 (Tex. Sup. Ct.1970).
In Ex parte Matthews, 488 S.W.2d 434 (Tex.Cr.App.1973), the contention was made that he, Matthews, was denied equal protection of the law because there was a different age requirement between males and females for their treatment as juveniles. This Court held that such disparity was unconstitutional but there was another statute under which both males and females over the age of fifteen years could be prosecuted. See Chase v. State, 508 S. W.2d 605 (Tex.Cr.App.1975).
Section 41-10 is not dependent upon the exemption of flower and ice cream sales from the prohibition against the sale of merchandise on Houston sidewalks. By deleting the language referring to the sale of “frozen desserts from sanitary vehicles” in Section 41-10 and excising 41-10.1, every person is prohibited from selling merchandise on Houston sidewalks. The remainder of Section 41-10 is complete and capable of being enforced in accordance with the intent of the Houston City Council. Thus, appellant was subject to prosecution under Section 41-10, Houston City Ordinances.