                 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.
