dissenting.
This is an appeal from an order of the trial court revoking appellant’s probation.
*129On February 2, 1978,1 appellant was placed on probation for two years by the then presiding judge of the 145th Judicial District Court, Hon. Thomas Barlett, who was then sitting for the elected presiding judge, Hon. Jack Pierce. On October 5, 1978, the Hon. Herbert B. Hancock district attorney, filed an application for revocation of probation with Judge Pierce, who then ordered a warrant of arrest to issue for appellant. On April 9, 1980, the warrant was executed and appellant was placed in the Nacogdoches County jail. A hearing was held on April 16, 1980, after which Judge Pierce ordered appellant’s probation revoked.
Appellant first questions the jurisdiction of the trial court to hold the revocation hearing because the term of probation had expired at the time of the hearing.
Where this Court is confronted with an order revoking the probation, after the term of probation has expired, and the issue is properly drawn on appeal, probation may nevertheless be revoked, if the following elements are proved by the State.
(1) The motion to revoke is filed within the term of probation;
(2) A warrant or capias issues within the probationary term or period;
(3) The State diligently attempts to prosecute the motion to revoke, including the apprehension of appellant;
(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 delay.
See Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977), and the cases cited therein, and Stover v. State, 365 S.W.2d 808 (Tex.Cr.App.1963).
In reviewing the record, I find the following:
(1) Appellant received probation on February 2, 1978, and the term of probation was for two years.
(2) A motion to revoke was filed on October 5, 1978.
(3) A capias or warrant of arrest issued on the same day.
(4) Appellant was not, however, arrested until April 9, 1980.
(5) A hearing was held on April 16, 1980, after which appellant’s probation was revoked.
Thus, the State, without question, satisfied four of the necessary elements of revoking a probation after the term of probation expired. The question remains: whether the State diligently attempted to prosecute the motion to revoke after filing of same and after the warrant of arrest issued, i. e., was there a diligent effort to apprehend appellant between October 5, 1978, and April 9, 1980, approximately 18 months?
Ordinarily, where an alleged violation of probation occurs within the term of probation, and a warrant of arrest or capias issues for the arrest of the probationer, and the hearing is not thereafter unduly delayed, the probation may be revoked, even though the term of probation has or would have expired at the time of the hearing. There is no question from this record that appellant was accorded a speedy hearing from the date of his arrest as the hearing was conducted exactly one week from that date. However, see Lynch v. State, 502 S.W.2d 740 (Tex.Cr.App.1973), the mere filing of a motion to revoke probation, without more, will not sustain an order revoking the probation. Barring any intervening causes, when the term of probation has expired, the trial court’s jurisdiction over the probationer is terminated. Thus, it appears that a close reading of the cases reflects that where an application or motion to revoke probation is filed during the term of probation, and a warrant of arrest issues, but there is an unreasonable delay in either the execution of the warrant or there is unreasonable delay in conducting a hearing on the motion to revoke, the matter becomes quasi-jurisdictional. Should the reason for the delay not be satisfactorily shown, then the trial court does not have *130jurisdiction over the subject, the probationer. On the other hand, if it is shown there was not an unreasonable delay in either regard, that is, the execution of the warrant or the hearing, then there is no question regarding the jurisdiction of the trial court to revoke the probation even after the term of probation has expired. Thus, it is incumbent upon the part of the party seeking to invoke the jurisdiction of the trial court to show that the trial court had jurisdiction over the subject, the probationer, at the time of the hearing, in order to obtain a valid order of revocation. Failure to carry that burden will result in fundamental or reversible error. See Art. 40.09, Sec. 13, V.A.T.C.C.P. I would, therefore, sustain appellant’s first ground of error. The facts on this issue, show the following:
The Judgment placing the Defendant on probation was entered on February 2, 1978. An Application for Revocation of Probation was filed by the District Attorney on October 5,1978, setting forth allegations of technical violations in connection with five matters. The Application to Revoke bears the clerk’s file mark of October 5, 1978, a fiat reflecting the application was presented to the District Court on said date. The fiat provides for a show-cause hearing to be set on November 7, 1978, at 1:30 p. m. The order further provides for the clerk to issue a capias. The record further shows that the clerk’s warrant for arrest was issued on October 5, 1978. The officer’s return shows it was executed by Dora Butler, deputy for John Lightfoot, Sheriff of Nacogdoches County, Texas, bearing a return that the instrument came on hand on April 9, 1980, and was executed on April 9, 1980, by arresting the said Defendant at Nacogdoches and placing him in the Nacogdoches County jail on April 9, 1980.
This appears to me to also be a case of first impression on this point. In addition to Lynch, supra, the reader is directed to McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748 (1958); Pollard v. State, 172 Tex.Cr.R. 39, 353 S.W.2d 449 (1962); Ex parte Fennell, 126 Tex.Cr.R. 286, 284 S.W.2d 727 (1955); Bobo v. State, 479 S.W.2d 947 (Tex.Cr.App.1972); Bryant v. State, 496 S.W.2d 565 (Tex.Cr.App.1973); and Coffey v. State, 500 S.W.2d 515 (Tex.Cr.App.1973); and see also Texas Digest, Criminal Law Key 982.3, and the cases collated thereunder.
The State’s reliance on Strickland v. State, Tex.Cr.App., 523 S.W.2d 250 (1975), is misplaced for there the defendant testified to one fact and his probation officer contradicted his testimony, thus leaving the issue of credibility and fact as one for the trial court to adjudicate. Here, there is no evidence from any source to show any reason for the delay in the execution of the warrant of arrest.
The question, simply put, is whether the State of Texas failed, as a matter of law, to exercise due diligence in securing the execution of the warrant of arrest upon appellant, for that was their burden to sustain. I find a dose analogy to this issue in civil law where a plaintiff’s claim may be barred by the statute of limitations. The State here does not quarrel with the fact that by the record on appeal its agents did nothing from the time the warrant of arrest issued until same was executed. In sum, there is nothing by this record to show what, if anything, occurred with the warrant of arrest in this interim. I find what members of our Supreme Court unanimously said in Rigo Manufacturing Company v. Thomas, 458 S.W.2d 180 (Tex.1970), appropriate and applicable to the disposition of this cause as to this ground of error. I would hold that the mere filing of a motion or application to revoke probation will not interrupt or toll the running of the term of probation, but to interrupt the running of the term of probation, the use of diligence in procuring the execution of the arrest warrant is required and mandatory. For reasons why this is a good rule of law, see Buie v. Couch, Tex.Civ.App., Waco, 126 S.W.2d 565, 566 (1939). I would therefore find, as a matter of law, that the State failed in this cause to satisfy its burden in showing reasonable or due diligence in the execution of the warrant of arrest for appellant, and would sustain ap*131pellant’s first ground of error for this reason and would order the case reversed and judgment rendered in favor of appellant.
Although not raised by appellant as a ground of error, there is another issue in this cause that should be considered in the interest of justice, see Sec. 13, Art. 40.09, V.A.C.C.P., and I do so.
There is no dispute that appellant was placed on probation on February 2, 1978, and there is no dispute he was given certain conditions of probation on that date, and there is no dispute he was assigned and was interviewed by a probation officer on that same day, and was admonished by the probation officer to comply with the conditions of probation. However, that apparently was the end of any relationship between appellant and Mr. Chaviers, the Nacogdo-ches County probation officer, for Chaviers testified he never thereafter saw appellant in person. “I transferred the case.” This “transfer” consisted of Chaviers causing a Mr. Richard Brice, Chief Probation Officer of Nacogdoches County, to write a letter to one Frank J. Keegan at 401 Caroline Street, 2nd Floor, Houston, Texas, 77002, and, among other things, the letter is entitled “Intrastate Placement Request,” and states: “It is requested that an investigation be made with a view toward acceptance of this case for supervision.” The record nowhere reflects who or what Kee-gan may be or who he represents. Though I personally know Frank Keegan is head of the Harris County Adult Probation Department, the law does not permit me to take judicial notice of this fact. See McCormick and Ray, Texas Practice, 2nd ed., Evidence, Sec. 151, p. 170. The letter also states: “Mr. Hardman has been instructed to contact your probation department the week of May 8th-May 12th.” Brice also sent a letter dated the same day, April 24, 1978, addressed to “Steven Lyle Hartman, 110 Bagby, Houston, Texas,” stating: “Dear Steven: Contact the Harris County Probation Department the week of May 8th-May 12th for consideration of courtesy supervision” “They are located at 401 Caroline Street, 2nd Floor, Houston, Texas; Phone: 713-229-9661.” “If you have any questions, contact me.” In addition to the above letters, a Mr. Brett Walker also sent a letter dated August 7,1978 to “Steven L. Hardman,” which stated: “As per our letter dated 4/24/78 you were to report to the Harris County Probation Department.” “They have notified me that they have not had any contact with you whatsoever.” “You are to report to them within 10 days.” “Failure to do so may be considered a violation of your probation.”
Peter Zama, an Adult Probation Officer assigned to the 174th Judicial District Court in Harris County, Texas, testified he received the above letters, but he also never personally met appellant, although he had “contact” with appellant in March, 1978. This “contact” apparently occurred when he, too, wrote a letter to “Steven Lyle Hartman,” but at the hearing he did not have a copy of any such correspondence nor did he know when he mailed a letter to “Steven Lyle Hartman.” He subsequently wrote a letter to the “Nacogdoches County Probation Department.” He thereafter closed his file on “Steven Lyle Hartman.”
Chaviers also testified that when he interviewed appellant he told appellant he could live anywhere he desired “uh, for employment purposes or other purposes, and, uh, that he should receive a letter from us.” “Also, that the probation department in that jurisdiction would receive a letter and the instructions would be in the letter as to when to report.”
During the hearing, appellant’s counsel continuously raised the question of whether there had been an unlawful delegation of power by the trial court or whether there was an unlawful exercise of power by the probation department’s employees. It is undisputed that neither Judge Bartlett nor Judge Pierce, nor any other judge for that matter, ever orally granted appellant permission to go anywhere, much less Houston, Harris County, Texas, although the written formal judgment signed by Judge Bartlett does state: “Remain as a resident and within the limits of Harris of the State of Texas, unless you are permitted to depart by *132the Court and/or Probation Department.” Appellant personally received a copy of this instrument. Apparently, in Nacogdoches County a copy of the formal judgment also constitutes the “conditions of probation.” About all the original proceedings show on this point is that Judge Bartlett, after completion of the plea and punishment proceedings, told appellant to “go with the probation officer.”
So, from this record, I find the following:
(1) Appellant is placed on probation.
(2) He is told by the trial court to go with a probation officer.
(3) He receives a copy of the written judgment which, among other things, tells him to “remain as a resident and within the limits of Harris of the State of Texas.”
(4) The probation officer tells appellant he could live anywhere he desired for employment purposes or other purposes.
(5) Another probation officer wrote a letter to a Frank Keegan requesting him to make an investigation “with a view toward acceptance of this case for supervision.”
(6) A letter addressed to “Steven Lyle Hartman” was sent telling the person to “contact” the Harris County Probation Department “for consideration of a courtesy supervision.”
(7) Another such letter was sent saying the person was to “report” to the Harris County Probation Department.
(8) A Harris County Probation Officer also wrote a letter to “Steven Lyle Hartman.”
(9) All of these letters were sent non-certified and whether they were received by “Steven Lyle Hartman” or returned is not shown by the testimony adduced or by this record.
All of the parties in this cause appear to have lost sight of the fact that only the trial court having jurisdiction of the case shall determine and fix the term and conditions of probation. The trial court may not delegate this authority to a probation officer or anyone else. See McDonald v. State, 442 S.W.2d 386 (Tex.Cr.App.1969); DeLeon v. State, 466 S.W.2d 573 (Tex.Cr.App.1971); Kuenstler v. State, 486 S.W.2d 367 (Tex.Cr.App.1972); and Art. 42.12, Secs. 5 and 6, V.A.C.C.P.
Not only does it appear that the probation officers below forgot this rule, but all the parties below appear to have overlooked Sec. 9 of Art. 42.12, V.A.C.C.P., which provides: “If, for good and sufficient reasons, probationers desire to change their residence within the State, such transfer may be effected by application to their supervising probation officer, which transfer shall be subject to the court’s consent and subject to such regulation as the court may require in the absence of a probation officer in the locality to which the probationer is transferred.” There should be absolutely no question from this record that this provision was not complied with in this cause.2 There is not a scintilla of evidence in the original proceedings to show appellant was ever officially transferred from Nacogdoches County. The Probation Department of Harris County never officially accepted appellant as a probationer. It is the trial court and not some probation officer who decides whether the probationer may transfer, and even then his actions are conditioned upon the probationer being accepted by the receiving probation department.
Here, the probationer is told by the written judgment that he is to “Remain as a resident and within the limits of Harris of the State of Texas, unless you are permitted to depart by the Court and/or Probation Department.” Appellant then personally meets with a Nacogdoches County probation officer, who testified he never saw appellant again because: “I transferred the case.” Letters are sent to, presumably, the Harris County Adult Probation Department, asking them if they would make an investigation to see if they would later accept appellant as a probationer. When *133their investigation did not prove fruitful, they, too, “transferred the case,” presumably back to Nacogdoches, but until the hearing on the motion to revoke, it appears that from the time Nacogdoches “transferred” the case, that probation office had nothing further to do with the case.
It has been said that the relationship between the court and the probationer is contractual in nature, see McDonald, supra, and the cases cited therein, and that conditions of probation should be clearly set forth in the judgment and order granting probation so the probationer and the authorities may know with certainty what the conditions are. Therefore, based upon contract law, I find the State is estopped by its actions toward the “contract,” in claiming that appellant failed to report. See City of Lubbock, Texas v. Green, 201 F.2d 146 (5th Cir. 1953). To hold otherwise would put appellant in the unenviable position of having to report to two different probation departments at the same time, on the same day, in different counties, approximately 143 miles as the crow flies. I would therefore hold a probationer cannot be required to report to two different probation departments under these circumstances. See also infra, footnote 3.
The State alleged other violations, namely, that appellant failed to pay court costs, failed to pay a monthly supervisory fee, failed to pay restitution, and failed to pay his court appointed attorney’s fee. However, in searching the record of the hearing, from top to bottom and sideways, there is not only no evidence to show a violation of any of these alleged conditions, there is not even a scintilla of evidence to support the allegations. In fact, the following is what was adduced concerning these alleged violations.
Q [Mr. Hancock] And, did you explain the term and condition of probation in reference his monthly reportings?
A [Mr. Chaviers] Yes.
Q Did you explain that to him in writing and in person, also?
A Yes, I did.
Q All right, sir. I believe that term and condition is in that judgment that the Defendant himself received, is that not correct?
A Yes.
Q Did you also tell, uh, the Defendant verbally and in writing that he had to pay the cost of court, which was $65.20 within sixty days from the date of the judgment?
A Yes.
Q Did you also tell the Defendant this one, Mr. Steven Lyle Hardeman that he was to pay $15.00 per month as provided by law in this cause?
A Yes.
Q All right, sir. Did you also tell him he had to pay restitution in the amount of $25.00 at a rate of $25.00 per month commencing on the first day of the coming month after the probation was granted?
A That’s correct.
Q Did you also advise him that he had to pay attorneys’ fees in the amount of $250.00 at the rate of $50.00 per month?
A That’s correct.
Q Was these, uh, admonishments made both in writing and in person by you?
A Yes, they were.
The record does, however, reflect that Mr. Hancock offered and had introduced into evidence, without objection, “the original judgment that’s in the file of the District Court,” and also had admitted into evidence, without objection, “a copy of the original records contained in Mr. Gartman’s office in Cause Number 10,533-78 — 1, uh, date of entry, February 2nd, 1978, stating, ‘Two Years Probation,’ the probation records out of the District Clerk’s office in this case as State’s Exhibit Number Two, if it please the Court.” No person, not even a deputy district clerk or the clerk of the court, ever testified to these documents or what they represent or what they purport to represent. All the instrument, labeled “PROBATION RECORD,” reflects is the following and no more.
*134
Only by speculation could anyone say what this document stands for or what it means, etc. What is missing, in this regard, is “testimony,” for as Judge Roberts, speaking for a majority of this Court, said in Gassett v. State, 532 S.W.2d 328, 330 (Tex.Cr.App.1976):
******
Art. 3737e, V.T.C.A., sets out the well-recognized “business records” exception to the hearsay rule. Subsection 1 thereof states three prerequisites to the introduction of a relevant business record or memorandum: (a) it must have been made in the regular course of business, (b) by an employee or representative with personal knowledge of its contents, (c) at or near the time in question. The record or memorandum may be offered by the entrant, custodian, or other qualified witness, even though he may lack personal knowledge of its contents. Art. 3737e, Sec. 2. Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr.App.1975). “Business” is defined broadly enough in Sec. 4 to include the law enforcement agencies involved herein. Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.1973). Section 3 permits testimony as to the absence of such a record or memorandum and would seem to con*135trol the situation at bar. The only prerequisite stated in Sec. 3 to the introduction of such testimony showing the nonexistence of an act, event, or condition is that the judge must find that such act, event, or condition would otherwise be recorded and preserved in the ordinary course of business at or near the time in question. Presumably the testimony contemplated by Sec. 3 should be given by the “entrant, custodian or other qualified witness” mentioned in Sec. 2.
In sum, there is nothing to show this record was the record to show payments or nonpayments by appellant. There is not a scintilla of evidence in this record to show any connection between the Clerk of the District Court of Nacogdoches County and the Nacogdoches County Adult Probation Department, or vice-versa, other than a statement in the judgment that “The Clerk of the Court will furnish the Probation Department and the Defendant a copy of this order, and shall note on the docket sheet that date of delivery of such to the Defendant.” A business record, like a motion of an accused, is not a self-proving document. As to its contents, or non-contents, as here, there must be proof. This instrument, at a minimum, represents zero evidence. See Salas v. State, 403 S.W.2d 440 (Tex.Cr.App.1966); and Steves Sash and Door Co. v. WBH Intern., Tex.Civ.App., San Antonio, 575 S.W.2d 355 (1978) (no writ hist.).
It may be that four letters were mailed to a person bearing the same name as appellant, but there is no evidence to show that the letters were ever received by appellant.
It is true there is an equitable maxim that says, “He who comes into equity must come with clean hands,” but I find there is another equitable maxim more appropriate to this cause and that is “Equity regards as done that which ought to be done,” and, in my opinion, based upon this record, I have done what ought to be done and that is to recommend this case be reversed.
Since there is no showing that appellant has violated a lawful condition of probation imposed by the court, I conclude that the trial court abused its discretion in revoking probation.3
I would therefore order this cause to be reversed and judgment rendered4 for appellant.
. Emphasis supplied throughout by the writer unless otherwise indicated.
. If it is the intention of the parties, and the trial court, at the time a person is placed on probation, that he shall be transferred to another jurisdiction, the record should affirmatively show this, but this record does not.
. The judgment, as to the condition of probation to report, states: “Report to the Probation Department monthly in writing between the 1st and 10th of each month and in person within ten days of notice to do so and permit the Probation Department Officers to visit you at your home or elsewhere.” The application to revoke alleged this and also alleged appellant failed to report from March through September, 1978, inclusive. The Order of Revocation tracks the application verbatim. In addition to what I have said above, the phrase “Report to the Probation Department” is extremely vague and ambiguous, for it is impossible for one “to report to the Probation Department.” In light of this record, where the trial court sets this type condition and then tells the probationer to go with the probation officer and it is not shown where the probationer went and the probation officer then “transfers” the probationer but there is no change in the condition of probation as to where the probationer is to report, in addition to the reasons given why I think this case calls for a reversal, this condition is probably so vague and ambiguous as to be a nullity. The condition of probation for reporting should clearly set out not only to whom the probationer is to report, but where, when and on what date he is to report. See Harris v. State, 608 S.W.2d 229 (Tex.Cr.App.1980). Here, for all practical purposes, under this record, the way the condition is worded, it might as well not exist for it probably constitutes an unauthorized delegation of authority by the court to an employee of the probation department. See Presiding Judge Onion’s pointed comments in Cox v. State, 445 S.W.2d 200, 202 (Tex.Cr.App.1969). See also Parsons v. State, 513 S.W.2d 554 (1974), and the cases cited at page 556.
. Of course, see Frazier v. State, 600 S.W.2d 271 (Tex.Cr.App.1980), I recognize that hearsay testimony admitted without objection at a revocation of probation hearing has probative value and may in and of itself constitute sufficient evidence in support of an order revoking probátion, but the above clerk’s document in question cannot be construed to meet this minimal standard of proof as this document represents, as a basis for revoking appellant’s probation, no evidence to support the trial court’s order of revocation. It is still zero evidence to support the allegations regarding payment of fees, costs and restitution and does not even come close to meeting the preponderance of the evidence standard of proof this Court requires in revocation cases. See Scarmado v. State, 517 S.W.2d 293 (Tex.Cr.App.1974). Zero plus zero plus zero still equals zero, if my math is correct.