(concurring).
As I understand appellant’s contention, it is that the trial court abused its discretion in revoking probation since the offense used as the basis of the revocation was one for which he had not been previously convicted in a court of competent jurisdiction. He insists that such alleged offense was a misdemeanor “properly triable in the County Court of Potter County, Texas” under Article 483, Vernon’s Ann.P.C., where he would be entitled to a jury trial.
Where the motion to revoke probation is predicated upon the alleged violation of the condition of probation that defendant not commit any offense against the penal laws of this or any other state or the United States, the question often arises as to the propriety of the hearing on the motion to revoke until after the penal offense made the basis of the motion is tried and disposed of in a court of competent jurisdiction. This was a requirement of the Suspended Sentence Law (former Article 776-781, V.A.C.C.P., 1925) but not of the Adult Probation and Parole Law. In Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589, the defendant was indicted for robbery by assault alleged to have been committed after he had been placed on probation conditioned that he not violate the penal laws of this state. On appeal following revocation the defendant challenged the right of the trial judge to hold the hearing to revoke until after the robbery case alleged as the basis of the revocation was tried. The appellate court found no abuse of discretion by the trial judge in refusing to continue the revocation of probation hearing until the indictment for robbery had reached trial, even though the indictment for robbery was dismissed the same day the order of revocation was entered. See Gorman v. State, 166 Tex. Cr.R. 633, 317 S.W.2d 744; Seymore v. Beto, 5 Cir., 383 F.2d 384. Cf. Smothermon v. State, Tex.Cr.App., 383 S.W.2d 929.
In Smith v. State, 160 Tex.Cr.R. 438, 272 S.W.2d 104, it was expressly held that the hearing on a motion to revoke probation prior to the time of the criminal charge, which involved the question of whether the defendant had violated the state criminal law, was regularly heard in proper tribunal did not constitute error.
In Ex parte Bruinsma, 164 Tex.Cr.R. 358, 298 S.W.2d 838, the Court of Criminal Appeals held that probation may be revoked upon a finding by the trial court as a fact that the terms of probation have been violated and it is not necessary that there first be a trial and conviction for the offense which is the basis for the revocation, citing the Dunn case, supra. These holdings are- based on the fact that the defendant does not go to the penitentiary for violation of probation, but because of his original conviction and because he failed to rehabilitate himself, in accordance with the conditions of probation. See Ex parte Gomez, Tex.Cr.App., 241 S.W.2d 153.
If it be appellant’s contention, however, that he was entitled to a jury trial at the revocation hearing itself, the same is expressly precluded by the provisions of Article 42.12, Sec. 8, V.A.C.C.P.; Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774; Ex parte Gomez, supra; Jones v. State, 159 Tex.Cr.R. 24, 261 S.W.2d 317, *664cert. den. 346 U.S. 836, 74 S.Ct. 53, 98 L.Ed. 358; Dunn v. State, supra; Cooke v. State, 164 Tex.Cr.R. 320, 299 S.W.2d 143; Gorman v. State, 166 Tex.Cr.R. 633, 317 S.W.2d 744; Leija v. State, 167 Tex.Cr.R. 300, 320 S.W.2d 3; Stratmon v. State, 169 Tex.Cr.R. 188, 333 S.W.2d 135. I do not construe Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh. den. 390 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412, as calling for a different result as contended by the appellant.
When clemency is extended under the statute (Article 42.12, supra) by the court, the relationship is in a way contractual— that is, the court agrees with the defendant that probation will be extended if he will keep and perform certain requirements and conditions, the violation of which will authorize the revocation of probation. The accused surrenders no right or privilege or consideration for the clemency extended. Wilson v. State, supra; Jones v. State, supra; Glenn v. State, 168 Tex.Cr.R. 312, 327 S.W.2d 763. I therefore would find no merit to appellant’s further contention that the trial judge was disqualified because he was the judge who had granted probation.
For the reasons stated, I concur in the result reached that the revocation of probation did not involve an abuse of discretion.