Tumlinson v. State , 515 S.W.2d 113 ( 1974 )

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction in a trial before the court for the offense of willfully fleeing from a police officer in violation of Article 6701d, Section 186(a), Vernon’s Ann.C.S. Punishment was assessed at thirty (30) days in jail and a fine of One Hundred Fifty and no/100 Dollars ($150.00) ; however, the imposition of sentence was suspended and appellant was placed on probation.

In Stein v. State, Tex.Cr.App., 515 S.W.2d 104, and Harvey v. State, Tex.Cr.App., 515 S.W.2d 108 (decided September 18, 1974), we held that the penalty subsection of Article 6701d, Section 186(b), V.A.C.S., was unconstitutional because the caption failed to apprise the legislators and the general public that a specific penalty was added along with the newly created offense of willfully fleeing from and attempting to elude a police officer as denounced by Section 186(a), supra. See also Besson v. State, Tex.Cr.App., 515 S.W.2d 112 (decided September 18, 1974).

In the cases mentioned above we held that a violation of Section 186(a), supra, should be enforced through the general penalty provision as found in Article 6701d, Section 143, V.A.C.S. Section 143 provides for a fine of not less than One Dollar ($1.00) nor more than Two Hundred Dollars ($200.00). The punishment in the instant case, being in excess of that provided under Section 143, supra, is not authorized. Since this was a trial before the court and the punishment is the issue involved, the trial judge, upon receipt of the mandate of this Court, may assess a proper punishment. See Elizalde v. State, Tex.Cr.App., 507 S.W.2d 749, and the cases there cited.

The cause is remanded for the proper assessment of punishment.

It is so ordered.