¶1(dissenting).
¶2My brethren reform the judgment of the trial court by eliminating therefrom the probation of the 30-day jail penalty and, as so reformed, the judgment is affirmed. Gilderbloom v. State, Tex.Cr.App., 272 S.W.2d 106, supports that judgment and is cited as authority therefor.
¶3I do not agree that the judgment may be so reformed. The Gilderbloom case is basically unsound, and ought to be overruled.
¶4I therefore enter my dissent, and present my reason therefor:
¶5Art. 802, Vernon’s P.C., as it existed prior to May 27, 1953, defined the offense known as drunken driving and fixed the punishment for violation thereof “by confinement in the County Jail for not less than ten (10) days nor more than two (2) years, or by a fine of not less than Fifty Dollars ($50) nor more than Five Hundred ($500), or by both such fine and imprisonment.”
¶6This statute will be referred to as the old act.
¶7By Chap. 167 passed at the regular session of the 53rd Legislature in 1953, and *297effective 90 days after adjournment on May 27, 1953, the legislature amended Art. 802, Vernon’s P.C., and fixed the punishment for drunken driving at “confinement in the county jail for not less than three (3) days nor more than two (2) years, and by a fine of not less than Fifty ($50.00) Dollars nor more than Five Hundred ($500.00) Dollars. Provided, however, that the presiding judge in such cases at his discretion may commute said jail sentence to a probation period of not less than six (6) months.”
¶8This statute will be referred to as the new act.
¶9It will he seen that the difference, and only difference, between the old and the new act is that at least three days’ confinement in jail, together with a fine, is required by the latter. The jail term, however, is subject to be probated at the discretion of the trial court.
¶10There is nothing vague, indefinite, or uncertain about the language or terms of the new act. To the contrary, the language is direct, clear, definite, and certain. It shows that the legislature changed the punishment affixed to the offense of drunken driving and authorized probation of the jail penalty.
¶11In Ex parte Hayden, 152 Tex.Cr.R. 517, 215 S.W.2d 620, it was held — and I think correctly so — that the Adult Probation and Parole Law, Art. 781b, Vernon’s C.C.P., did not extend to and authorize the probation of a jail sentence in a misdemeanor case. The conclusion reached was that the new act, in so far as it authorized probation of the jail penalty, was void and in violation of the Constitution, which places the clemency power in the Governor and the Board of Pardons and Paroles of this state.
¶12Instead of destroying the whole of the new act by reason of its unconstitutional portion, the court proceeds in the Gilder-bloom case to sustain the remaining portion —that is, to sustain the new or amended penalty or punishment fixed thereby, without reference to probation. That holding was founded upon the proposition that such was the legislative intent in passing the new act.
¶13In my opinion, that holding is wrong. It is of such far reaching effect as to be dangerous to the settled law of statutory construction in this state.
¶14It is by reason of this innovation that I am impelled to express my views at some length, which I might not otherwise do.
¶15It will be noted that the new act contained no severability clause. Nowhere therein did the legislature give any direction as to the validity of the other portions of the act in the event any part was found to be invalid. The presumption must attain that had the legislature so desired or intended, a sever-ability clause would have been placed in the act.
¶16It is a cardinal rule of statutory construction that the courts will, in construing a statute, look for the legislative intent. But that rule applies only when there exists some reason to look for the legislative intent. So, also, it is the rule that if a statute is clear, unambiguous, and susceptible of but one construction, there is no occasion to look for the legislative intent.
¶17Above and beyond all rules, the courts should never, under the guise of seeking the intent of the legislature, enter the field of legislation and promulgate laws.
¶18The rules referred to will be found in 39 Tex.Jur., Statutes, Sections 88 and 89. The supporting authorities are there collated.
¶19Here, the new act is direct and certain, and expressed in terms that call for no reason to look for their meaning.
¶20The sustaining of the new act with the probation feature removed therefrom is, in my opinion, the rankest sort of judicial legislation on the part of the court. The court goes further than the legislature, itself, did, for, by giving effect to what it construes to be legislative intent, it assumes the position of enacting a law by intent or intendment. There is no such thing as enacting a law by intent. To be effective, a law must be the act of the legislature and not what the legislature intended to enact into law.
¶21In my opinion, then, there is no escape from the conclusion that the Gilderbloom *298case sustains as a law that which was not enacted by the legislature but what the court construes the legislature intended to enact.
¶22The Gilderbloom case violates still another cardinal rule of statutory construction:
¶23If the several provisions of a legislative act are so mutually connected with and dependent upon each other as conditions, consideration, or compensation for each other as to warrant the belief that the legislature intended them as a whole and would not have enacted one or more of them if the others could not be joined and carried into effect, then all provisions must fall. 9 Tex. Jur., Constitutional Law, Sec. 56, p. 474.
¶24Here, the new act dealt only with and legislated upon one single subject, that being the penalty which was to be affixed to the offense of drunken driving. The penalty was divided into two parts, the first being the punishment that was to be applied and the second, relief against part of the punishment that was required to be applied (probation) .
¶25Now the Gilderbloom case holds that the provision which relieves against the punishment was incidental only to the punishment aqd could thereby be eliminated. With this conclusion I do not agree. The probation feature of the new act is as much a part of the punishment affixed the'reby as- any other part thereof. It was not, therefore, only incidental to the act but a necessary part of the whole act. The punishment affixed to the crime of drunken driving by the new act could not be given effect without the probation feature. The striking from the new act of the probation feature destroyed, in my opinion, the whole of the act.
¶26Accordingly, it is my view that the new act must fall and that the old act has never been amended and is the act under which prosecutions for drunken driving should be conducted, and that this case should be reversed and remanded.