IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 98-11014 _____________________

DAVID GARDNER, Petitioner - Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.

--------------------- Appeal from the United States District Court for the Northern District of Texas

May 1, 2001 ON PETITION FOR REHEARING (Opinion April 4, 2001. 5th Cir. 2001, _____F.3d____) Before JOLLY, WIENER, and STEWART, Circuit Judges.

PER CURIAM: It is ORDERED that the petition for rehearing is granted for the limited purpose of revising the last sentence of our opinion, which we delete and replace with the following: The judgment of the district court is reversed and the case remanded to that court with instructions to enter an order granting Gardner a writ of habeas corpus unless, within a reasonable time specified by the district court, the State of Texas either (1) conducts a new, constitutionally permissible, sentencing proceeding or (2) vacates Gardner’s death sentence and imposes the automatic life sentence specified by Texas law for a defendant who is convicted of capital murder but not sentenced to death.

REVERSED and REMANDED with INSTRUCTIONS.