ON MOTION for rehearing
Our prior opinion in this cause is withdrawn.
The offense is driving while intoxicated, as a second offender; the punishment, 5 days in jail and a fine of $300.00.
Appellant entered a plea of guilty, waived the right of trial by jury, and was tried before the court.
The punishment prescribed by Article 802, V.A.P.C., for the second offense of driving while intoxicated is “by a fine of not less than One Hundred ($100.00) Dollars nor more than Five Thousand ($5,000.00) Dollars, or confinement in the county jail not less than ten (10) days nor more than two (2) years, or both such fine and imprisonment, or by confinement in the state penitentiary- not to exceed five (5) years.”
Since the court saw fit to impose a jail term, it was incumbent upon such court to comply with the statute. In Rutherford v. State, 79 Tex. Cr. Rep. 605, 187 S.W. 481, where the punishment was less than the minimum, this Court held that no court could assess a punishment that the law does not authorize. See also Justice v. State, 341 S.W. 2d 431, and Henderson v. State, 318 S.W. 2d 898.
Because of the error shown, the judgment is reversed and the cause remanded.