ON REMAND FROM THE SUPREME COURT OF ALABAMA

The prior order of this court, Allen v. Hooks, [Ms. 6435, October 11, 1989] (Ala.Civ.App. 1989), is withdrawn, and the following is substituted therefor.

The prior judgment of this court has been reversed and the cause remanded by the Supreme Court of Alabama. On remand and in compliance with the Supreme Court’s opinion in Ex parte Hooks, 564 So.2d 443 (Ala. 1989), we now address the remaining issue raised by the department.

The department argues that the trial court erred in declaring the 1982 amendment to Ala.Code 1975, § 25 — 4—78(3)(b)., unconstitutional. We find no merit in his argument in that the trial court did not declare the provision unconstitutional.

Therefore, in compliance with the supreme court’s opinion, this case is due to be affirmed.

ORIGINAL ORDER WITHDRAWN; ORDER SUBSTITUTED; AFFIRMED.