dissenting.
My research reveals that this Court’s early revocation of probation decisions, and notwithstanding the lack of statutory authority, or the legal fact that “due process of law” did not then exist in our State law as a matter of State law, the holdings in the early cases involving a revocation of probation hearing held after the term of probation had expired were not all that clear. I am afraid that today’s majority opinion does not shed much additional light on the subject; in fact, sad to say, it builds on a foundation that rests on quicksand.
My research reveals that this Court has often treated the trial court’s authority to revoke a defendant’s probation, after the term of probation has expired, on an equal plane with the usual definition for the term “jurisdiction,” and has held that if the defendant somehow manages to “escape” having a motion to revoke filed against him during the term of his probation, and the term expires, the trial court no longer has jurisdiction over the defendant or his probation. For obvious reasons, also see post, early on, conditioned that the State had taken certain steps during the term of probation, this Court approved the trial court holding a hearing on the State’s motion to revoke after the term of probation had expired, and actually ordering the defendant’s probation revoked.
I also find that much confusion exists because, as a matter of statutory law, if it was reported to the trial judge who granted the defendant probation, that the defendant had violated his probation, it was then, and is now, permissible, for the trial court to issue a warrant for the defendant’s arrest. See now Art. 42.12, § 10(c), V.A.C.C.P. There was not then, nor do I find today, a statutory requirement that a formal motion to revoke must be filed by the State.
In Ex parte Fennell, 162 Tex.Crim. 286, 284 S.W.2d 727 (Tex.Cr.App.1955), a majority of this Court approved holdings by the Supreme Courts of South Carolina and Florida construing a similar statute, see Lovell v. State, 223 S.C. 112, 74 S.E.2d 570, 572, and State ex rel. Lee v. Coker, 80 So.2d 462, 463. Those courts held that regardless of the circumstances it would have been unconscionable to require a trial court in all cases not only to issue a warrant of arrest within the probationary term, but to also see that the warrant was executed within the probationary period of time, and further that a hearing had to be held and the order of revocation was entered within the probationary period.
In the dissenting opinion that I filed in Hardman v. State, 614 S.W.2d 123 (Tex.Cr.App.1981), I attempted to set forth when the State could seek revocation of the defendant’s probation after the term of probation had expired. That can occur, I *520believe, when the State has satisfied all of the following:
(1) The State’s motion to revoke the defendant’s probation is filed within the term of probation;
(2) A warrant of arrest or a capias issues by the trial court within the probationary term;
(3) The State diligently attempts to prosecute the motion to revoke, including the apprehension of the defendant;
(4) The alleged violation of probation occurred prior to the expiration of the probationary period; and
(5) The trial court holds a revocation hearing without undue or unreasonable delay. Hardman, supra, at page 129.
None of the above concern questions of sufficiency of the evidence, i.e., the issue is not whether the evidence is sufficient to support a finding in favor of the State; the issue is whether the State has established that the trial court had jurisdiction over the probation and the defendant. Also see Stover v. State, 365 S.W.2d 808 (Tex.Cr.App.1963).
A failure by the State to establish all of the above elements should cause the trial court to enter judgment in favor of the defendant. This is because failure of the State to establish all of the above elements causes a lack of jurisdiction on the part of the trial court to exist, if the State attempts to revoke the probation after the term of probation has expired.
I am compelled to part company with the majority opinion’s holding that “This matter is simply one of burden shifting which requires the State to come forward with evidence of diligence once the defendant has raised and developed the issue at the revocation hearing.” (Page 519 of slip opinion.) I totally disagree with this conclusion because there is only one burden and there is only one party that has the responsibility to satisfy that burden, and that is the State. The defendant has no burden to satisfy and is free to remain mute at all times while the State attempts to establish jurisdiction over the probation and the defendant.
The burden to show due diligence, however, once the probationary term has expired, and the State seeks to invoke the trial court’s jurisdiction, is always on the State. Under those circumstances, the defendant has no burden to carry; that burden remains with the State from the beginning to the end — to establish the fact that the trial court had jurisdiction over the probation and the defendant.
There is simply no shifting of any burden of proof regarding due diligence in a revocation of probation case; that burden commences with the State and ends with the State.
Unfortunately, this Court erred in Prior v. State, 795 S.W.2d 179 (Tex.Cr.App.1990), by holding that “once the defendant had raised the issue [of due diligence], [only then did] the State have the burden of showing due diligence.” (Page 517, slip opinion.) In short, if the term of probation has expired, and if the State does not satisfy its burden regarding “due diligence,” then it has failed to invest jurisdiction in the trial court, and judgment must be rendered on behalf of the defendant. In that instance, the defendant, if he chooses, need do nothing; much like a defendant accused of committing a criminal wrong who chooses to simply sit and watch the State put on its case, hoping of course that the State will somehow fail in its proof.
The majority opinion correctly holds that “due diligence” is not an affirmative defense. Of course, jurisdiction is never an affirmative defense, and I am unfamiliar with any court decisions, nor does the majority opinion cite any, where the opposing party must object to a trial court’s lack of jurisdiction. It is so elementary that citation is unnecessary for the legal principle that a judgment rendered by a trial court without jurisdiction is a nullity and may be attacked at any time.
In Prior, supra, “the State offered nothing to show it had made a diligent effort to apprehend appellant after the motion to revoke was filed.” (Page 518 of slip opinion in this cause.) This is actually saying *521the same thing as “The State, by failing to establish due diligence, failed to invoke the jurisdiction of the trial court.” If it does not mean the same thing, then-that part of Prior should be expressly overruled.
Prior, supra, “begat” Langston v. State, 800 S.W.2d 553 (Tex.Cr.App.1990). The same flaws that exist within Prior, supra, also exist within Langston, supra. It, too, should be quickly and expressly overruled.
For the above and foregoing reasons, I respectfully dissent.
This opinion was prepared by Judge TEAGUE prior to his untimely death.