OPINION
ONION, Presiding Judge.
These proceedings present the question of the constitutionality of Section 6.01(c) of the Texas Controlled Substances Act, Vernon’s Ann.Civ.St. art. 4476-15 (Acts 1973, 63rd Leg., Ch. 429, p. 1132 — effective August 27, 1973), which has been codified as Article 725f, Vernon’s Ann.P.C.
[778]*778The relator was convicted in the 178th District Court of Harris County on October 18, 1972, of the felony offense of possession of marihuana (on the 15th day of August, 1971) in Cause No. 168,817.
The trial upon relator's plea of guilty was before a jury, which assessed his punishment at thirty (30) years. On December 19, 1972, sentence was imposed and notice of appeal was given.
The appellate record has not been filed in this court, and on October 10, 1973, the relator filed a written motion in the trial court electing to be sentenced under the provisions of Section 6.01(c) of the Texas Controlled Substances Act, which reads as follows :
“In a criminal action pending, on appeal, or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court requesting that the court sentence him under the provisions of this Act.” 1 (emphasis supplied)
The trial court refused such motion and relator now seeks a writ of mandamus to compel the Honorable Dan Walton, Judge of the 178th District Court to sentence him in accordance with the provisions of the aforementioned statute.
Respondent urges that Section 6.01(c) of Article 725 f, supra, is unconstitutional insofar as it infringes upon the power of the Governor to grant pardons and commutations pursuant to Article IV, Sec. 11 of the State Constitution, Vernon’s Ann.St., that the procedure of sentencing is not covered in caption of the bill which enacted the Texas Controlled Substances Act in violation of Article III, Sec. 35 of the Texas Constitution, and that the said Section 6.-01(c) infringes upon the constitutional right to trial by jury.
JURISDICTION
At the outset we must determine if this court has jurisdiction of these proceedings.
Article V, Sec. 5 of our State Constitution provides in part:
“The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.
“The Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction. . . .” (emphasis supplied)
Article 4.03, Vernon’s Ann.C.C.P., also provides that this court shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases, and Article 4.04, Vernon’s Ann.C.C.P., provides that the “court and each member thereof shall have, and is hereby given, power and authority to grant and issue and cause the issuance of writs of mandamus and certio-rari agreeable to the principles of law regarding said writs, whenever in the judgment of said court or any member thereof the same should be necessary to enforce the jurisdiction of said court.”
Thus, this court may issue writs of mandamus to enforce the court’s appellate jurisdiction or its original jurisdiction to issue writs of habeas corpus, but this is a limited use of such writ, for the Court of Criminal Appeals has no general power to issue writs of mandamus. Millikin v. Jef[779]*779frey, 117 Tex. 134, 299 S.W. 393 (1927); Ex parte Boehme v. State, 158 Tex.Cr.R. 597, 259 S.W.2d 201, 203 (1953); Ex parte Rubison, 170 Tex.Cr.R. 314, 340 S.W.2d 815 (1960) ; Eaves v. Landis, 96 Tex.Cr.R. 555, 258 S.W. 1056 (1924); Hogan v. Tur-land, 430 S.W.2d 720 (Austin Court of Civil Appeals—1968); Bradley v. Miller, 458 S.W.2d 673 (Tex.Cr.App.1970).
[778]*7781. Although relator’s conviction is for possession of marihuana, it is to be observed that Section 6.01(c) is not limited to marihuana related offenses as Section 4.06, which was declared unconstitutional in Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973). Section 6.01(c) applies to any criminal act arising under the former law and now covered by the Texas Controlled Substances Act.
[779]*779Is our appellate jurisdiction here involved so as to afford us the authority to issue the writ of mandamus?
We cannot conclude that it is. The appellate record has not yet been received by this court, and the trial court still retains jurisdiction of the cause. See Articles 40.09, 44.11, Vernon’s Ann.C.C.P.; Rangel v. State, 408 S.W.2d 231 (Tex.Cr.App.1966); Brill v. State, 408 S.W.2d 232 (Tex.Cr.App.1966); Tucker v. State, 416 S.W.2d 437 (Tex.Cr.App.1967). Cf. Phillips v. State, 429 S.W.2d 897 (Tex.Cr.App.1968); Carrillo v. State, 480 S.W.2d 612 (S.Ct.1972).
It is clear that the refusal of the trial court to act under the provisions of Section 6.01(c) of the Texas Controlled Substances Act does not infringe upon our appellate jurisdiction so as to authorize this court to consider the issuance of a writ of mandamus.
Nevertheless, in light of the relator’s allegations, supported by the record, that he would be entitled to immediate relief if the trial court acceded to his request to sentence him under the penalty provisions of the Texas Controlled Substances Act, his possession of marihuana being shown to be four grams,2 we shall consider the pleadings as an application for writ of habeas corpus. Cf. Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971) cert. den., Pruett v. Texas, 404 U.S. 910, 92 S.Ct. 226, 30 L.Ed.2d 182, rehearing den., 404 U.S. 996, 92 S.Ct. 529, 30 L.Ed.2d 548 (wherein the application for writ of prohibition was treated as an application for writ of mandamus) .
We now undertake consideration of respondent’s contention that the provisions of said Article 6.01(c) would infringe on the Governor’s constitutionally granted powers of clemency.
CONSTITUTIONAL AUTHORITY TO GRANT CLEMENCY
Article IV, Sec. 11, Vernon’s Ann.St. Const., grants to the Governor the power, “after conviction,” and upon the recommendation of the Board of Pardons and Paroles to grant reprieves and commutations of punishments and pardons. He is also given the power to remit fines and forfeitures.3
[780]*780Recently in Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973), this court had occasion to briefly discuss the history of such constitutional provision, and it need not be repeated here.
It is observed that the people of a state are at liberty to lodge this power in any branch of government they may so desire. Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778, 780 (1933). In Texas the power has long been lodged in the Executive.
Our State Constitution also provides in Article II, Sec. 1 thereof that the power of government shall be divided in three distinct departments, Executive, Legislative and Judicial, and further provides “. . . ; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted, (emphasis supplied)
This clearly worded Article has been interpreted to mean that a power which has been granted to one department of government may be exercised only by that branch to the exclusion of the others. Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912). And any attempt by one department of government to interfere with the powers of another is null and void. Ex parte Rice, 72 Tex.Cr.R. 587, 162 S.W. 891 (1914). This is a well established maxim of constitutional law.
If there has been any remission by the people of the Governor’s power of clemency after conviction in criminal cases, it is to be found in Article IV, Sec. 11A of our State Constitution, which reads:
“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 Legislatue may prescribe.” (emphasis supplied)
SECTION 6.01, TEXAS CONTROLLED SUBSTANCES ACT
Section 6.01(a) of the Texas Controlled Substances Act provides that “[Ejxcept as provided in Subsections (b) and (c) of this section,” the Act applies only to offenses committed on or after the effective date of the Act, and that offenses committed before the effective date shall be governed by the law existing before such date, “which law is continued in effect for this purpose, as if this Act were not in force.” 4
Said Subsections (b) and (c) provide as follows:
“(b) Conduct constituting an offense under existing law that is no longer an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act. However, a final conviction existing on the effective date of this Act, for conduct constituting an offense under existing law, is valid and unaffected by this Act.
[781]*781“(c) In a criminal action pending-, on appeal, or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court requesting that the court sentence him under the provisions of this Act.”
The provisions of Subsection (a), above, are generally in accord with the provisions of the present Articles 15, 16 and 17, Vernon’s Ann.P.C.5
Said Subsection (b) generally is in accord with Article 14, Vernon’s Ann.P.C.,6 and with certain exceptions hereinafter noted, Subsection (c) generally relates to Article 13, Vernon’s Ann.P.C.7
It would thus appear that once having set out the policy that the Act is to be applicable only to those offenses committed on or after its effective date and that the old law remains in effect for the prosecutions of earlier offenses, the Act then proceeds by exceptions to undermine such policy. It is observed that while Section 6.-01(a) prohibits anyone finally convicted under existing law to take advantage of the Act’s penalty provisions, it also provides that conduct constituting an offense under existing law which is not an offense under the Act shall not be prosecuted and any pending prosecution for such conduct shall be dismissed. Subsection (c) provides that a defendant who is prosecuted for an offense committed before the effective date of the Texas Controlled Substances Act and whose trial commences thereafter may elect in writing that he be sentenced by the court under the provisions of such Act. Such provision is similar to the present Article 13, Vernon’s Ann.P.C., except that only the judge can impose the punishment under Section 6.01(c).
Such subsection also provides that a defendant in any “criminal action pending, on appeal . . .” may also utilize such procedure to be sentenced under the provi[782]*782sions of the Texas Controlled Substances Act.
It appears that such portion of said subsection (c) was intended to apply to those cases where notice of appeal has been given and the case is awaiting preparation of the appellate record in accordance with Article 40.09, Vernon’s Ann.C. C.P., as well as those cases pending but undecided in the Court of Criminal Appeals. In most of these cases sentence will have been imposed under the law in existence prior to the effective date of the Texas Controlled Substances Act, for notice of appeal must be given after the sentence is pronounced, except in probation cases and cases where the death penalty has been assessed. See Article 44.08, Vernon’s Ann.C.C.P., and a sentence is generally essential to the jurisdiction of this court. See Article 42.04, Vernon’s Ann.C. C.P.
It is this portion of subsection (c) that has been called into question by the proceeding invoked by the relator, whose case is pending appeal, but whose record has not reached the Court of Criminal Appeals.
If, as relator contends, the provisions of Section 6.01(c) are mandatory, then the trial court would have no discretion except to sentence him under the provisions of the Texas Controlled Substances Act. See Sections 4.01 and 4.05 thereof.
If this is so, what is entailed in the factual situation presented by this proceeding? Sentence has already been imposed in the instant case (December 19, 1972) under the provisions of Article 725b, Vernon’s Ann.P.C., prior to the effective date of the Texas Controlled Substances Act (August 27, 1973), which repealed said Article 725b. To sentence under the provisions of the new Act the court would have to set aside the earlier sentence or there would be two conflicting sentences in the same cause. If the earlier sentence assessing a punishment of “not less than two nor more than thirty years” is set aside, then the judgment upon which it is based will also have to be set aside, and the jury verdict upon which the judgment is based will have to be set aside in whole or in part.
If it can be argued that the jury verdict need not be set aside in its entirety, then the court would have to set aside the jury verdict assessing punishment at the penalty stage of the trial and assess punishment relying upon the guilty verdict returned by the jury at the guilt or innocence stage of the bifurcated trial. See Article 37.07, Vernon’s Ann.C.C.P. While the constitutional right of trial by jury does not encompass the right to have jury assess punishment, Emerson v. State, 476 S.W.2d 686 (Tex.Cr.App.1972); Hall v. State, 475 S.W.2d 778 (Tex.Cr.App.1972); Martin v. State, 452 S.W.2d 481 (Tex.Cr.App.1970); Green v. State, 474 S.W.2d 212 (Tex.Cr.App.1971); Johnson v. State, 436 S.W.2d 906 (Tex.Cr.App.1968); Jones v. State, 416 S.W.2d 412 (Tex.Cr.App.1967), it is observed that an accused may have the jury assess punishment under the conditions prescribed in Article 37.07, Sec. 2(a), Vernon’s Ann.C.C.P. And when the jury assesses punishment, Section 3(c) of such statute provides that “ . . . the verdict shall not be complete until the jury has rendered a verdict both on the guilt or innocence of the defendant and the amount of punishment, where the jury finds the defendant guilty. In the event the jury shall fail to agree, a mistrial shall be declared, the jury shall be discharged, and no jeopardy shall attach.”
Another question presents itself. The indictment when presented charged a felony, possession of marihuana, to which there was no lesser included offense at the time. The same was true at the time of appellant’s conviction and subsequent sentencing.. Now, may the court imposing a new sentence upon the appellant find him guilty of a misdemeanor8 under the provisions of the said Article 6.01(c)? Does [783]*783the original indictment support such action, and does the District Court here involved have misdemeanor jurisdiction to dispose of the case as directed by Article 6.01(c), supra ?
Putting aside all the ancillary problems and assuming, without deciding, that they can all be resolved, just what is the ultimate effect of the provisions of Section 6.-01(c) in the instant case? It would mean, if applied, that the trial court, without any discretion, must set aside the prior sentence based upon the judgment reflecting the jury’s assessment of thirty (30) years as punishment, and then sentence or resen-tence the relator under the provisions of the Texas Controlled Substances Act. In view of the amount of marihuana shown to be possessed, the new conviction would be a Class B misdemeanor conviction which carries a penalty of 180 days in the county jail or by a fine not to exceed $1,000, or by both such fine and imprisonment. Not only must the punishment be reduced, changing the conviction from a felony to a misdemeanor, but the possible loss of the rights of citizenship resulting from a final felony conviction are avoided. See footnote #6, Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973).
It seems too clear to question that if said Section 6.01(c) is applied in relator’s case or those similarly situated upon written request, it would result in a less severe punishment being imposed.
“Commutation” as that term has been defined “means the change of punishment assessed to a less severe one.” Ex parte Lefors, 165 Tex.Cr.R. 51, 303 S.W.2d 394 (1957); Smith v. Blackwell, supra, and cases there cited.
From the very wording of the subsection 6.01(c) it appears that the statute extends commutation to those previously convicted, whose cases are pending appeal on the effective date of the Texas Controlled Substances Act, as a mere gift or a matter of clemency upon the filing of a written request for sentencing or resentencing under the Texas Controlled Substances Act.
This would appear to be clearly violative of the constitutional provision placing such power of clemency in the hands of the Governor.
This is true because any statute which in any wise abridges or infringes upon the power granted to the Governor by Article IV, Sec. 11, would be unconstitutional, unless sustainable under some other constitutional provision. See Ex parte Redwine, 91 Tex.Cr.R. 83, 236 S.W. 96 (1922). When the power of clemency has been conferred by the Constitution, 'it cannot be exercised by the Legislature. Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778 (1933). See also Gilderbloom v. State, 160 Tex.Cr.R. 471, 272 S.W.2d 106 (1954) ; Waggoner v. State, 161 Tex.Cr.R. 242, 275 S.W.2d 821 (1955); Smith v. Blackwell, supra.
Although the procedure authorized by said Section 6.01(c) could be referred to as a “sentencing” under the provisions of the Texas Controlled Substances Act, or a “resentencing” where sentence under the prior law has been imposed, it would appear to fall within the term “commutation.” “By whatever name the grant of clemency may be called, the substance of the act and not the name by which it is designated control its effects.” See Ex parte Black, 123 Tex.Cr.R. 472, 59 S.W.2d 828 (1933); Ex parte Lefors, supra. Cf. Ex parte Redwine, supra; Smith v. Blackwell, supra.
MEANING OF TERM “AFTER CONVICTION” AS USED IN ARTICLE IV, SECTION 11 OF STATE CONSTITUTION
Relator candidly concedes that if the term “after conviction” as used in Article IV, Sec. 11 of our Constitution “means after the return of a verdict by a jury or after punishment is assessed” then the provisions of said Section 6.01(c) may in[784]*784fringe upon the clemency powers of the Governor. Relator, in a well written brief, recognizing that an essential question with regard to the instant case is the meaning of the term “after conviction,” vigorously urges that the term “means final conviction in the sense that a mandate of affirmance has been issued by the Court of Criminal Appeals of Texas or that no appeal has been taken from a conviction.”
Appellant advances the theory that until there is such a final conviction there can be no infringement upon the Governor’s constitutional powers to grant pardons, commutations, etc.
It would appear that the authorities are clearly contrary to appellant’s contention.
In Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912), this court demonstrated that words “after conviction” do not necessarily embrace the sentence, but simply mean the verdict of conviction and the judgment on the verdict. The Snod-grass opinion pointed out that the term “after conviction” has been used in all of our constitutions since 1845, and that when the 1845 Constitution was adopted, the law did not require nor permit a sentence to be pronounced until after appeal and the judgment of the appellate court had been rendered; much as the modern day provision that sentence is not to be imposed in death penalty cases until the receipt of the mandate of affirmance of the Court of Criminal Appeals. The opinion, which reviewed many authorities, noted that from our first code a pardon issued by the Governor was a legal reason to be interposed in bar of sentence,9 and that constitutions and codes have been adopted and revised with the same provisions thereby adopting its construction.
And the Snodgrass court forcefully pointed out that the meaning of the words of a Constitution at the time they were placed therein cannot be altered or amended by legislation at a subsequent time.
Generally in accord with the Snodgrass opinion’s interpretation of the term “after conviction” is Duke v. State, 106 Tex.Cr.R. 154, 291 S.W. 539 (1927); Goss v. State, 107 Tex.Cr.R. 659, 298 S.W. 585 (1927). See also 44 Tex.Jur.2d, Pardon, Reprieve, Etc., Sec. 7, p. 10.
Such construction is strengthened by the use of the same term in Article IV, Sec. 11A of the Constitution which provides that “after conviction” certain courts may suspend the imposition or execution of sentence and place defendants on probation. Article 42.12, Vernon’s Ann.C.C.P., also provides that “after conviction” the court in granting probation must suspend the imposition of the sentence.
We cannot agree with appellant’s contention that “after conviction” means a final conviction in the sense that he urges it.
If the provisions of Section 6.01(c) can be sustained, they must be sustained under some other theory.
SUSTAINABLE UNDER STATE CONSTITUTIONAL ARTICLE IV, SECTION 11 A?
May the action authorized by Article 6.-01(c) with regard to cases on appeal be sustainable under the provisions of Article IV, Sec. 11A of our State Constitution?
This section of the Constitution is a limited grant of clemency to the courts by the people and does not encompass the general authority to grant commutations and pardons. The section itself has been held not to be self-enacting. State v. Klein, 154 Tex.Cr.R. 31, 224 S.W.2d 250 (1949). The present enabling acts, the present probation statutes, are Articles 42.12 and 42.13, supra.
[785]*785We find nothing in this constitutional provision which would authorize the action contemplated by said Section 6.01 (c) with regard to cases pending on appeal. Neither is the suspension of the imposition or the execution of sentence involved, nor is probation involved, etc. The provisions of said Section 6.01(c) are far beyond the limited scope of Article IV, Sec. 11A of the Texas Constitution.
It is true, of course, that under the provisions of Section 7 of Article 42.12, Vernon’s Ann.C.C.P., the probation period may be terminated or reduced if the defendant has completed one-third of the said period or two years of probation, whichever is the lesser, and it is true that this court has held that a trial court may, under such provisions, reduce the punishment from that originally assessed at the time of revocation of probation and impose a less severe punishment prior to sentencing. See Smith v. State, 399 S.W.2d 557 (Tex.Cr.App.1966); Beshear v. State, 169 Tex.Cr.R. 131, 332 S.W.2d 724 (1960); Capuchino v. State, 389 S.W.2d 296 (Tex.Cr.App.1965); Trevino v. State, 464 S.W.2d 859 (Tex.Cr.App.1971); Potter v. State, 420 S.W.2d 948 (Tex.Cr.App.1967); Washington v. State, 361 S.W.2d 395 (Tex.Cr.App.1962). Cf. De Leon v. State, 466 S.W.2d 573 (Tex.Cr.App.1971), and Quintero v. State, 469 S.W.2d 189 (Tex.Cr.App.1971), and cases there cited.
Such section of Article 42.12, supra, was enacted pursuant to the limited grant of authority of clemency to the courts encompassed in Article IV, Sec. 11A of the State Constitution, and surely cannot be stretched to cover a situation where there has never been a suspension of the sentence and probation is not involved. Merely because the courts perform a certain function under the express authority of the statute and the Constitution, this fact does not authorize courts to perform other such similar functions if in doing so such acts infringe upon the constitutional authority of other branches of government.
SUSTAINABLE UNDER CONSTITUTIONAL ARTICLE III, SECTION 1?
Are the provisions of Section 6.01(c) as they relate to cases pending on appeal sustainable under the provisions of Article III, Sec. 1 of the State Constitution delegating to the Legislature law-making authority including the right to define crimes and fix penalties therefor ?
In Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912), the first suspended sentence law (Acts 1911, 32nd Leg., Ch. 44) was held invalid on several grounds, one of which was that it infringed upon the pardoning power of the Governor. Such bill had provided that in assessing punishment the jury could also recommend the suspension of sentence, but such recommendation had the effect only of conferring upon the court the power to consider whether he would suspend the sentence.
Thereafter, the Legislature enacted a second suspended sentence law (Acts 1913, 33rd Leg., Ch. 7) which included a provision that the jury’s recommendation as to the suspension of the sentence was binding upon the trial court. In Baker v. State, 70 Tex.Cr.R. 618, 158 S.W. 998 (1913), such legislation was upheld. The court reasoned that it did not conflict with the Governor’s pardoning power in that it did not relieve from punishment "after conviction” as that term is used in the Constitution, but provided that in certain types of cases no punishment should be imposed unless the individual should once again violate the law. It was held that defining crimes and fixing penalties was a legislative function and the Legislature was authorized to provide in certain cases that no punishment, under certain conditions, should be imposed. Since the bill was to be applied to future cases, the court noted that the “Legislature has not sought to excuse from punishment any one after conviction and penalty assessed.”
It should be clear, without further elongating this opinion, that provisions of [786]*786Section 6.01(c) relating to cases pending on appeal cannot be sustained on the basis of the Legislature’s right to define crimes and fix penalties. In each of the cases pending appeal in the trial court or in the Court of Criminal Appeals penalty under the former law has been assessed, sentence in most cases has been imposed, and such cases clearly fall within the term “after conviction” as used in our Constitution. See Article IV, Secs. 11 and 11 A, Texas Constitution.
Therefore, when said Section 6.01(c) requires the trial court to sentence a defendant under the provisions of the Texas Controlled Substances Act where he has been previously convicted under the former law, sentenced and given notice of appeal, such action comes “after conviction” as that term is used in the Constitution. See Smith v. Blackwell, supra; Duke v. State, 106 Tex.Cr.R. 154, 291 S.W. 539 (1927); Goss v. State, 107 Tex.Cr.R. 659, 298 S.W. 585 (1927); 44 Tex.Jur.2d, Pardon, Reprieve, Etc., Sec. 7, p. 10.
And the same would be true whether the case “pending appeal” is still in the trial court under the provisions of Article 40.09, Vernon’s Ann.C.C.P., or in the Court of Criminal Appeals.10
CONCLUSION
We cannot reach any other conclusion except that the Legislature exceeded its power in enacting Section 6.01(c) of the Texas Controlled Substances Act insofar as it relates to criminal action pending on appeal on its effective date since it is violative of Article IV, Sec. 11 of our Constitution. To hold otherwise would be to announce that the Legislature has the authority to invest trial courts with the power to grant commutation, etc., “after conviction” upon written request, thus usurping the powers granted to the Governor by the Constitution.
The balance or remainder of said Section 6.01(c) relating to criminal actions for an offense committed before the effective date of the Act where the trial commences on or after the effective date of the Act need not fall or be declared void because of the unconstitutionality of part of subsection (c). The severability clause (Sec. 6.04) of the Texas Controlled Substances Act reads;
“If any provision of this Act or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.” See also Delorme v. State, 488 S.W.2d 808, 811 (Tex.Cr.App.1973); 12 Tex.Jur.2d, Constitutional Law, Sec. 47, p. 392.
Further, nothing in our holding today prevents the trial court from granting a new trial under the provisions of Article 40.09, Sec. 12, Vernon’s Ann.C.C.P., even though the conviction was under the prior law and the penalty to be assessed, in the event of a new trial, would be governed by the Texas Controlled Substances Act. The same result would be reached following reversal by this court of any such case, or where this court abates an appeal for further proceedings under Article 40.09, supra, and the trial court subsequently granted a new trial under its provision.
In light of our holding we do not reach the question raised by the respondent that said Section 6.01 (c) is also unconstitutional because the subject matter of such subsection is not expressed in the title to the bill (Texas Controlled Substances Act), and is [787]*787thus violative of Article III, Sec. 35, Texas Constitution.
Further, we do not reach respondent’s contention that provisions of Section 6.-01 (c) are unconstitutional in that they chill the constitutional right to trial by jury in that only the court may assess punishment under such provisions.
Having decided to consider relator’s application for writ of mandamus as an application for writ of habeas corpus, we are of the opinion that the same should be denied.
It is so ordered.