(dissenting).
The respondent contends that Section 6.-01(c) of the Controlled Substances Act is unconstitutional insofar as it infringes upon the power of the Governor to pardon pursuant to Article 4, Section 11, of the Texas Constitution and that the procedure of sentencing is not covered in the caption of the bill, contrary to Article 3, Section 35, of the Constitution of Texas, and that the Act infringes on the right to a jury trial. The second contention will be discussed first.
Caption of the Act
Article 3, Section 35, of the Constitution of Texas, provides as follows:
“No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.”
In passing upon the constitutionality of Article 4.06 of the act in Smith v. Blackwell, 500 S.W.2d 97 (1973), this Court found it unnecessary to pass upon the title or caption of the act. The concurring opinion would have held the caption insufficient on the ground that fair notice was not given to the members of the Legislature and the public that a reduced penalty could be assessed for those convicted and who were serving sentences in the Department of Corrections.
Is the provision for sentencing under the act a component of the ultimate subject of the act so important that it must be set apart and distinctly expressed in the caption to give fair notice of its inclusion in the body of the act?
Liberal construction will be applied in determining whether a statute violates Article 3, Section 35, supra. Katz v. State, 122 Tex.Cr.R. 231, 54 S.W.2d 130. The requirement that the subject matter of the bill be expressed in its title is to be inter*788preted liberally and substantially, not strictly or literally. Consolidated Underwriters v. Kirby Lumber Company, 267 S.W. 703 (Tex.Com.App.1924).
The purpose of the requirement of expressing the subject of a bill in its title is to insure that the members of the Legislature and the public receive fair notice of the contents of a bill. Castellano v. State, Tex.Cr.App., 458 S.W.2d 73; White v. State, Tex.Cr.App., 440 S.W.2d 660. If a caption states the main subject of the act, it will be construed to cover any subsidiary matters reasonably connected, germane, incidental or relevant to the main subject. Lee v. State, 163 Tex. 89, 352 S.W.2d 724. All of the details and provisions of an act need not be expressed in the caption. State v. Rope, Tex.Civ.App., 419 S.W.2d 890. Original enactments are accorded a more liberal construction than where an amendatory act is involved. Praetorians v. State, 184 S.W.2d 299 (Tex.Civ.App.1944). With the above rules and cases in mind, we will consider the sufficiency of the caption.
The caption is more than one page and the statute is ninety-one pages in length. The caption announces that the act relates to the “regulation ... of certain drugs and controlled substances; prescribing penalties . . . and repealing the Uniform Narcotic Drug Act.” Looking at the caption as a whole, the reader would be forewarned that there was to be a wholesale revision of the existing law governing narcotic drugs. The phrase “prescribing penalties” alerts the reader that material changes may or will be made in the penalties formerly applied, especially in view of the fact that the caption expressly shows the intention to repeal the Uniform Narcotic Drug Act. The reasonable legislator or citizen reading the caption of the act would be put on notice that this was a proposed wholesale revision of existing drug law and an effort to wipe the statutory slate clean and begin anew.
In Ex parte Garcia, 125 Tex.Cr.R. 208, 67 S.W.2d 609 (1934), the statute was an amendatory act changing a former misdemeanor penalty for wife and child desertion to a felony. This Court held the change in penalty was authorized, and did not violate Article 3, Section 35, supra, by the captional reference of “prescribing fines, penalties, and punishments. . ”, saying:
“Notice is plainly given in the caption of the intended enactment of a law with penalties and punishments, such as the lawmakers deem appropriate.” Id., at 610.
In Fouga v. State, 171 Tex.Cr.R. 489, 351 S.W.2d 240 (1961), this Court upheld another amendatory act which added a new article, defining the offense and fixing a new penalty therefor, to the statute governing wilful desertion and nonsupport. The caption of that act recited, in part:
“An Act amending Article 602, Penal Code of Texas, 1925, and adding a new Article . . . so as to define what shall constitute wilfully deserting, neglecting or refusing to provide support and maintenance of a wife (and children); fixing a penalty;
This Court, citing Garcia, supra, as controlling, rejected appellant’s argument that Rotner v. State, 122 Tex.Cr.R. 309, 55 S.W.2d 98, and Gilbert v. State, 122 Tex.Cr.R. 542, 56 S.W.2d 880, controlled, because in both of those cases there was a material change in the penalty, but “no mention whatsoever of any penalty to be included in the amending article.” Fouga v. State, supra, 351 S.W.2d at 241. The Court then held that:
“The caption of the enactment . placed the public and the legislature on notice that the purpose of the act was, among other things, to add ‘a new Article’, (and) fix ‘a penalty’ . . . . ” Id., at 242.
Finally, in Wright v. State, 471 S.W.2d 407, we upheld a 1967 amendment to the Dangerous Drug Act, overruling the con*789tention that the caption was insufficient. White v. State, supra, was distinguished because in that case there were material changes in the penalty provisions of the original act, but there was no reference to such changes in the caption. In Wright, the caption recited that penalties were provided and increased. We held that:
“Fair warning was given that penalties were to be included in the amendatory act and that they would vary the former uniform penalty of the 1959 act.” Id., at 409.
In the instant case, the broad scope of the caption of the Controlled Substances Act gives fair notice to the public and to the Legislature that the “ultimate subject” of the Act is to repeal the mass of prior law governing the listed controlled substances and drugs, and to establish new provisions for drug regulation and enforcement. I would hold that the “prescribing penalties” clause in the caption is sufficient to place the reasonable reader under special notice that the penalty provisions under this Act would materially vary the prior penalty provisions. Under the rules of construction set out and discussed above, sentencing under the new Act would be but another valid means by which to accomplish the legislative object and, as such, it is immaterial that such subsidiary or component provisions are not expressly mentioned in the title. See Continental Bus System v. Carney, 310 S.W.2d 676 (Tex.Civ.App.).1
To hold otherwise would in many instances require the caption or title to be as long as the bill itself and Article 3, Section 35, of the Constitution would serve no useful purpose. In such an instance, each legislator or interested person would have to read the entire bill instead of the caption. The volume of proposed legislation is so great that reading all of each bill by a legislator would render the task almost impossible.
It should be remembered that every reasonable intendment and presumption will be made in favor of the constitutionality and validity of a statute until the contrary is clearly shown. The Legislature is presumed to have regarded constitutional limitations or requirements in enacting laws as assiduously as the courts do in construing and applying them. 53 Tex.Jur.2d, Statutes, Section 184, pages 277-278, and cases cited therein. The presumption is that any act passed by the Legislature is constitutional and all reasonable doubt will be resolved in favor of the lawful exercise of legislative power. Ex parte Smith, 441 S. W.2d 544 (Tex.Cr.App.1969).
Infringement Upon Pardoning Power
Respondent next contends that Article 6.01(c) is unconstitutional because it constitutes an impermissible infringement upon the pardoning power of the Governor as provided by Article 4, Section 11, of our Constitution, which provides, in part:
“In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction to grant reprieves and commutations and pardons . . . . ”
The issue here differs from that recently decided by this Court in Smith v. Blackwell, supra. There the petitioner had been convicted in the trial court, sentenced under former Article 725b, V.A.P.C., and his conviction affirmed on appeal and the mandate issued ordering that the judgment be carried out. In the instant case, applicant had given notice of appeal and the matter is still pending before the trial court. In holding the “resentencing” of *790one “finally convicted,” (after appeal, affirmation of the conviction and this Court’s mandate) was unconstitutional, we noted that the result of such resentencing would constitute a commutation of sentence by the courts in violation of Article 4, Section 11. We noted that “Section 4.06 authorizing resentencing clearly applies . to those who are presently serving a sentence, are on probation or parole, or who have been discharged from sentences” and, therefore, “comes within the term ‘after conviction’ used in Article 4, Section 11 of our Constitution.”
The decision in Smith v. Blackwell, supra, did not discuss the meaning of the term “after conviction” because under no reasonable construction could that phrase permit “resentencing” of one convicted after a mandate had been issued following appeal. In the instant case, the meaning of “after conviction” in Article 4, Section 11, is crucial, especially in light of the presence of the same phrase in Article 4, Section 11 A.
Prior to the adoption of Section 11A of Article 4 by amendment in 1935, the breadth of the clemency powers of the Governor under Section 11 had been amply defined. The power to pardon was held to include the power to grant both full and conditional pardons, Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162, 176. The Legislature has the power to define crimes and prescribe penalties under Article 3, Section 1, Constitution of Texas, and has the authority to prevent punishment before
conviction. Baker v. State, 70 Tex.Cr.R. 618, 158 S.W. 998; Ex parte Muncy, 72 Tex.Cr.R. 541, 163 S.W. 29. But the term “after conviction” was held to mean that the pardoning power of the Governor attached once the determination of guilt was made, either by plea of guilty or by verdict, Snodgrass v. State, supra; Duke v. State, 106 Tex.Cr.R. 154, 291 S.W. 539, and Goss v. State, 107 Tex.Cr.R. 659, 298 5.W. 585; and a pardon granted pending appeal is valid. 44 Tex.Jur.2d, Pardon, Reprieve and Commutation, Section 7, page 10; Goss v. State, supra.
Under Section 11, the sole power of clemency was vested in the Governor, and this power is not subject to legislative control except as provided by the Constitution itself. Under the principle that a constitutional grant of general powers to one of the departments of government constitutes an implied exclusion of the other departments from the exercise of those powers. It is the general rule that a grant of the pardoning power to the executive precludes the legislative or judicial department from exercising it. 44 Tex.Jur.2d, Pardon, Reprieve and Commutation, Section 4, page 8.
In 1912, in Snodgrass v. State, supra, this Court held unconstitutional a legislative act empowering the district court to suspend the sentence of persons convicted of certain enumerated felonies, after a jury finding that the defendant had no prior felony convictions. This power was in the discretion of the court to suspend the sentence, and if the defendant committed no other felony during the period of the suspension, the court could set aside and annul the judgment of conviction. This Court held that the act granted to such a person an unconditional pardon, Id., 150 S.W. at 165, and is nothing but an attempted conferring of the pardoning power upon the district judge and clothes him with all the authority in regard to conditional and unconditional pardons in these respects that is exercised by the Governor under the terms of the Constitution. Id., at page 181.
One year later, the same court, in Baker v. State, supra, apparently held to the contrary and upheld a similar statute.
Section 11A of Article 4 was adopted in 1935 to give the courts the clear power to suspend not only the imposition of sentence, but also the execution of sentence, to place the defendant on probation, and to reimpose such sentence, all under condi*791tions prescribed by the Legislature. Section 11A reads as follows:
“The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe.”
The purpose of permitting suspension or imposition of sentence is to mitigate the penalties of the criminal law so far as the public interest will permit, and to aid in the reformation of one who has been convicted so that he can take his place in society. See the Interpretive Commentary, Article 4, Section 11A, Vernon’s Annotated Texas Constitution. The present act providing for suspension of the execution of a sentence in felony cases, the Adult Probation and Parole Law, Article 42.12, V.A. C.C.P., was passed under the authority of Section 11 A. Probation has been used and is still being used in a large percentage of the- cases tried throughout the State. Under certain conditions in the present probation statute the penalty assessed by the jury may be reduced.
If the respondent’s theory were carried to its logical conclusion, probation could not be granted once there is a finding of guilt and the penalty assessed, because the Governor may pardon at that time.
To determine the constitutionality of Section 6.01(c) of the Texas Controlled Substances Act, two questions must be answered : first, what is the nature of the sentencing procedure provided by Section 6.01(c); and, second, what is the effect upon the clemency powers of the Governor under Section 11 of Article 4?
The sentencing provision of Section 6.-01(c) fits under no standard category of clemency as heretofore defined by the courts of this State.
Pardon has been defined as an act of grace which exempts the individual upon whom it is bestowed from the punishment the law inflicts for the crime he has committed. Snodgrass v. State, supra, at 165. It is further defined as a remission of guilt and as an act of grace by which the offender is released from the consequences of his offense. Whan v. State, Tex.Cr.App., 485 S.W.2d 275, 278; Young v. Young, 61 Tex. 191. A full and unconditional pardon absolves the party from all the legal consequences of his crime and of his conviction, direct and collateral, including punishment. Snodgrass v. State, supra, 150 S.W. at 176. In other words, a pardon reaches both the punishment prescribed for the offense and the guilt of the offender. See the dissenting opinion in Whan v. State, supra, 485 S.W.2d at page 279. A pardon must be accepted and received by the grantee for a pardon to be effective. Hunnicutt v. State, 18 Tex.App. 498. If accepted, the right of appeal is waived. See also 44 Tex.Jur.2d, Pardon, Reprieve and Commutation.
As defined above, there is no construction of Section 6.01(c) which would, in any way, constitute sentencing under the new act an unconditional pardon because there is no remission of guilt under this provision. Nor does Section 11A invade the exclusive power of the Governor to grant an unconditional pardon as that power has been heretofore construed.
At early common law there was no right to appeal and the return of a verdict of guilty represented a final judgment of conviction. Plucknett, A Concise History of the Common Law 213 (5th Ed. 1956); 1 Holdsworth, A History of English Law 214-16 (7 Ed. 1956); 2 Pollock and Mait-land, The History of English Law 64 (2d Ed. 1898); 10 Halsbury, Laws of England 521 (3d Ed. 1955). See also: 2 Sherman, Roman Law in the Modern World 433-38 (3d Ed. 1937). In England the right to appeal was not recognized in misdemeanor cases until 1705, and did not become recognized in felony cases until 1907. Regina v. Paty, 2 Salk 503, 91 Eng.Rep. 431 (K.B. 1705); Criminal Appeals Act, 1907, 7 Edw. *7927, c. 23, Sec. 3. The pardoning power was thus at early common law the only means by which a convicted offender could obtain review of his conviction or sentence from any branch of the government. The early decisions construing the right to pardon as arising upon the rendition of the verdict of guilt were consistent with the situation as it existed at early common law in that no right to appeal was recognized. The pardoning power was therefore a means of review of final convictions from which no appeal could be had, and was in effect the only remedy allowed for the review of convictions and sentences.
The probation laws have been enacted and utilized for many years. Changes in the punishments by the trial judge have been upheld. Article 11A of Section 4 of the Constitution of Texas was passed after the case of Snodgrass v. State, supra. Thus, the principle that the executive has the only power to lower a penalty has been eroded by specific constitutional provision as well as by practice.
The power to grant relief has been exercised by the Legislature and the courts ever since Texas has been a State.
Article 14 of the Penal Code provides:
“The repeal of a law where the repealing statute substitutes no other penalty will exempt from punishment all persons who may have violated such repealed law, unless it be otherwise declared in the repealing statute.”
In 1 Branch’s Ann.P.C.2d, Page 21, Section 20, it is written:
“The repeal of a statute pending prosecution does not exempt the offender from prosecution if the Legislature has otherwise declared ....
“If the statute is repealed pending prosecution without a saving clause, no punishment can be inflicted, although the act was done while the law was in force. The prosecution is 'pending’ though the case is on appeal. [Citations of authorities omitted]”
Article 15, V.A.P.C., provides:
“When by the provisions oí a repealing statute a new penalty is substituted for an offense punishable under the law repealed, such repealing statute shall not exempt from punishment a person who has offended against the repealing law while it was in force, but in such case the rule prescribed in article 13 shall govern.”
Article 13, V.A.P.C., provides:
“When the penalty for an offense is prescribed by one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for an offense committed before the second shall have taken effect. In every case the accused shall be tried under the law in force when the offense was committed, and if convicted punished under that law; except that when by the provisions of the second law the punishment is ameliorated he shall be punished under the second unless he elect to receive the penalty prescribed by the law in force when the offense was committed.”
These three statutes have been applied by the courts even after judgment, sentence and while the cases have been on appeal. Relief has been granted without the use of the pardoning power of the Governor.
A “conditional pardon” has been defined as an act of grace which does not become operative until the grantee has performed some specified act, or where it becomes void when some specified event transpires. The Governor may annex to a pardon any reasonable condition which is not illegal, immoral, or impossible to perform, and the pardon so conditioned must be accepted by the grantee to become effective. A conditional pardon does not wipe out the legal consequences of a conviction; this can be done only by a full pardon. Warren v *793State, 127 Tex.Cr.R. 71, 74 S.W.2d 1006. See also 44 Tex.Jur.2d, Pardon, Reprieve and Commutation, Sections 16-18, pages 16-17.
A commutation is defined as a substitution of a lesser for a greater punishment by authority of law. Unlike a pardon, it may be imposed without the consent of the convict or against his will. The exercise of the power of commutation limits and modifies the original sentence of the court, but does not annul the sentence; in effect it reaffirms the convict’s guilt and simply mitigates the severity of the punishment. It does not remove the disabilities arising from conviction. See In re Lefors, 165 Tex.Cr.R. 51, 303 S.W.2d 394 ; 44 Tex. Jur.2d, Pardon, Reprieve and Commutation, Sections 2, 24, 25, pages 5, 21-22.
The effect of an order to sentence the applicant under Section 6.01(c) would fit precisely under none of the above described forms of clemency exercised by the Governor. If the applicant were to be sentenced under Section 6.01(c), a new sentence would be imposed. Under the new sentence the classification of the applicant’s offense would be changed from that of a felony to a misdemeanor, and the punishment changed to a maximum of $1000 fine and 180 days in jail.
Such sentencing under Section 6.01(c) would have the elements of a conditional pardon and a commutation. Like commutation, a lesser punishment would be substituted for a greater one. Like a conditional pardon, an element of both the punishment and the legal consequences would be nullified and “acceptance” in the form of an election by the defendant is required.
While the acceptance of a pardon cuts off the grantee’s right to appeal his conviction, Section 6.01(c) does not impose such a consequence. Neither does it relieve the applicant from the full range of punishment for the offense as it is defined under the new Act.
Section 11A of Article 4 specifically empowers the Legislature to grant the trial courts of this State the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant on probation and to reimpose such sentence. . . .” Section 3 of the Adult Probation and Parole Act, Article 42.12, supra, provides that the courts shall have the power after conviction or on a plea of guilty for any crime or offense, where the maximum punishment assessed does not exceed ten years’ imprisonment, to suspend the execution of sentence and place the defendant on probation.
It should be noted that Section 7 of Article 42.12 provides at any time after the defendant has satisfactorily completed one-third or two years of the original probationary period, the period of probation may be reduced or terminated by the court. It further provides that upon satisfactory fulfillment of the condition and period of probation, the court shall amend or modify the original sentence imposed, if necessary, to conform to the probation period, discharge the defendant, set aside the verdict or withdraw a plea of guilty, and dismiss the indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from his conviction. Sections 3 and 7 of Article 42.12, supra, have been applied many times.
The effect of a suspension of the execution of sentence and probation under Article 42.12, supra, is almost identical to that of an executive conditional pardon. Like a conditional pardon, its object is the reformation of the offender or the convict. 67 C.J.S. Pardons § 16, Conditional Pardon, page 592. Similar to a conditional pardon, the remission of the guilt of a defendant is conditioned upon the good conduct of a defendant, and the probation can be revoked when its conditions are violated. The conditions of probation may be established by the Legislature in the same manner as the Governor may condition a grant of executive pardon.
Therefore, I am of the opinion and would hold that Section 11A of Article 4 *794of the Texas Constitution authorizes the Legislature to provide for the courts to grant relief somewhat akin to a conditional pardon and parallel to the power of the Governor to grant conditional pardons under Section 11 of Article 4. The use of the same words, “after conviction,” in both Sections, combined with the specific language of Section 3, Article 42.12, supra, “after conviction or a plea of guilty,” makes it clear that the power to exercise this judicial function attaches at the same time as does the executive clemency. This judicial authority does not extend beyond the jurisdiction of the court; that is, once a mandate has issued from this Court (and has not been withdrawn or stayed) the power of judiciary terminates, and the power of executive becomes exclusive.
It should be understood that the powers to the judicial department through Section 11A do not affect the clemency powers in the executive department. Article 42.12, supra, by the authority of Section 11 A, provides that the Legislature has the power to authorize the judiciary to sentence anew for a certain class of offenses. As noted, the executive clemency is an act of grace exempting the individual on whom it is bestowed from the punishment the law inflicts. It is founded on consideration of the public good and is to be exercised on the ground that the public welfare will be promoted. It may also be used to the end that justice be done by correcting injustice. Therefore, executive clemency is directed at the individual or group of individuals, while the judicial relief is directed at a class.
I would hold, therefore, that the executive and judicial powers may co-exist and complement each other in promoting the public welfare, assisting in the reformation of one convicted, and promoting justice.
Based upon this examination of the clemency powers of the executive and the mitigating powers of the judicial department of our State government as set forth by Sections 11 and 11A of Article 4, respectively, I would hold that the sentencing provisions of the Texas Controlled Substances Act, Section 6.01(c), Article 725f, V.A.C.C.P., are authorized under Article 4, Section 11A. Section 6.01(c), is, therefore, constitutional.
Infringement on Right to Jury Trial
Lastly, the respondent contends that even if Section 6.01(c) be held applicable only to cases not yet tried, it must be held void as requiring a defendant to abandon any hope of jury assessment of punishment if he is to have benefit of the reduced penalty provision. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, is cited as authority. This contention was made in Jones v. State, Tex.Cr.App., 502 S.W.2d 771 (this day decided), where the case was tried after the effective date of this Act. This Court noted that Jones had a right to a jury trial under this Act and wrote:
“Article 37.07, V.A.C.C.P., provides that the judge shall assess the punishment unless the defendant makes an election in writing at the beginning of the trial that the jury assess the punishment. In most jurisdictions, after a finding of guilty by the jury, the court assessed the punishment in ordinary felony and misdemeanor cases. There is no constitutional right for the jury to assess punishment. See Jones v. State, Tex.Cr.App., 416 S.W.2d 412. 31 Am.Jur. 40; 50 C.J.S. Juries § 78, page 784; Williams v. Jones, Ky., 338 S.W.2d 693, cert. denied 365 U.S. 847, 81 S.Ct. 808, 5 L.Ed.2d 811.”
One must elect to come under the new act. When he does so, he elects to be assessed a lighter sentence without a jury.
The record reflects that the applicant possessed four grams of marihuana. With good time credit on appeal he has served more than the maximum penalty which could be assessed against him under the Controlled Substances Act. In my opinion, he is entitled to the relief sought.