(dissenting).
I dissent to the affirmance of this case.
In Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517, this Court noted that the fact that a person had previously been determined to be “mentally ill” was not tantamount to a finding of “mental incompetency,” 1 but the finding of mental illness “standing alone” could be sufficient to raise the issue of present incompetency so as to require the trial judge to halt the proceedings and empanel a jury to determine the issue.2
Patently, a judicial determination of mental incompetency presents a far stronger case for halting the proceedings and empaneling a jury to determine the issue of incompetency to stand trial.
The record does not reflect that appellant was ever discharged from the Rusk State Hospital or that his mental competency has been redetermined by a court in accordance with Article 5547-83(a), Vernon’s Ann.Civ.St.3 While the judicial de*890termination that appellant was mentally incompetent was on October 29, 1964, the docket sheet in the instant case reflects that appellant’s first motion for continuance in the primary offense was granted on May 11, 1970, for the reason that appellant was in Rusk State Hospital. The proceedings in the primary offense and the revocation hearing were both in the 2nd Judicial District Court. Both were before the same judge.
The only other evidence presented at the hearing on appellant’s motion was a temporary commitment (and supporting papers in the cause) to Rusk State Hospital on August 24, 1964, based upon a finding that appellant was mentally ill, which was introduced into evidence by the State.
To summarize, the trial court was confronted with the following factors which raised the issue of the appellant’s incompetency to stand trial:
(1) Appellant’s motion to dismiss, while not a request to hear evidence on the issue of competency to stand trial as provided for in Article 46.02, V.A.C.C.P., did recite that appellant was under indefinite commitment to Rusk State Hospital and that his competency had never been restored.
(2) A commitment, dated October 29, 1964, to Rusk State Hospital for an indefinite period of time based upon a finding that appellant was mentally incompetent.
(3) A temporary commitment, dated August 24, 1964, to Rusk State Hospital based upon a finding that appellant was mentally ill.
(4) A continuance in the primary offense as shown by docket entry of May 11, 1970, reciting that appellant was in Rusk State Hospital.
In view of the foregoing factors which were before the court, I believe that the trial court should have halted the revocation proceeding and empaneled a jury to determine the competency of the appellant to proceed in the revocation hearing. Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517; Vardas v. State, Tex.Cr.App., 488 S.W.2d 467; Hefley v. State, Tex.Civ.App., 480 S.W.2d 810; Townsend v. State, Tex.Cr.App., 427 S.W.2d 55. The fact that the judicial determinations of “mental illness” and “mental incompetency” occurred prior to the trial of the primary offense, where it would appear that they were not brought to the attention of the court, does not preclude appellant from asserting lack of mental competency to stand trial in the revocation proceeding.4
Certainly, the unvacated judgment of incompetency put the burden on the State at that point to then prove the appellant’s present sanity beyond a reasonable doubt. In Francks v. State, 109 Tex.Cr.R. 440, 5 S.W.2d 157 (1928), this Court was faced with a case where two unvacated judgments of lunacy existed at the time of the accused’s trial for murder. This Court went so far as to hold that a memorandum which indicated that the accused had been released on the recommendation of a certain doctor was still insufficient to show that the judgment had been vacated or annulled. The Court spoke of the State’s responsibility for “assuming the burden of proof on the issue of insanity in a case of one who interposes that defense, who is shown by the testimony to have been adjudged insane at a time prior to the commission of the alleged offense.” Francks v. State, supra, at pg. 158.
*891Also, in the case of Bolton v. Stewart, 191 S.W.2d 798 (C.C.A.Fort Worth), no writ, it was held that a prior adjudication of the plaintiff as being of unsound mind created “prima facie proof of her insanity at that time and that she has continuously been insane since that time, and the presumption of insanity will continue so long as she lives or until such time as it shall be judicially determined that she has been restored to sanity under our ‘restoration’ statutes.” Of course, such a presumption is rebuttable by the other party, but such party has the burden at that point to offer competent rebuttal evidence.
The case of Elliott v. Elliott, 208 S.W.2d 709 (C.C.A. Fort Worth), writ ref., n. r. e., stated that “an adjudication of insanity by the county court raises a continuous rebut-table presumption of insanity, and that only a judgment of restoration of sanity, entered in a proceeding brought for that purpose, will be sufficient to conclusively remove such rebuttable presumption.”
I further refer the reader to our own Court’s recent decision in Kalinec v. State, 500 S.W.2d 146 (Tex.Cr.App.1973). There the appellant made the argument that at a sanity restoration proceeding, the burden of proof was misplaced when it put the burden on the defendant to show that he was then sane. This Court correctly held that the issue was not properly before us, but, in dicta at least, stated that it was “very plausibly argued that the burden of proof w^s thus misplaced.”
Perryman v. State, 494 S.W.2d 542 (Tex.Cr.App.1973) correctly stated that “the conviction of an accused person while he is legally incompetent violates due process, and that state procedures must be adequate to protect this right is settled.” (Citations omitted).
I would like to distinguish three recent opinions by this Court. In Nichols v. State, 501 S.W.2d 333 (Tex.Cr.App.1973), the record contained no evidence of a prior adjudication of incompetence and held that the State was not required to rebut any inference of insanity. In Wages v. State, 501 S.W.2d 105 (Tex.Cr.App.1973), the trial court also determined that the accused had not previously been adjudicated insane and made extensive inquiry as to the accused’s present insanity.
Finally, I feel compelled to further discuss and distinguish the Ainsworth case cited earlier. There, the accused had been previously determined to be mentally ill, but not mentally incompetent. We have both in the present cause.
I sincerely believe that the majority are ignoring what has been the well-recognized law of this State for many, many years. I do not know how much more evidence would be necessary before a trial judge would be required to halt the proceedings and determine the accused’s competency to face the charges against him. I cannot help but question whether or not the majority would have reached the same result they have today had this been an ordinary appeal from a conviction and not an appeal from a revocation proceeding. It seems to me that a “not so rigid requirement” rule has been added to the law of probation revocation in Texas. What the majority say in effect is that since the trial judge failed to make such a determination in the trial of the primary offense, there surely must be a presumption of correctness in such action which is necessarily carried over to a probation revocation procedure before the same judge. Many attorneys refer to such logic as “bootstrapping.”
I vigorously dissent.
ONION, P. 'J., joins in this dissent.. Article 5547-83(b), V.A.C.S., provides:
“The judicial determination that a person is mentally ill or the admission or commitment of a person to a mental hospital, without a finding that he is mentally incompetent, does not constitute a determination or adjudication of the mental competency of the person and does not abridge his rights as a citizen or affect his property rights or legal capacity.”
. In Ainsworth v. State, supra, this Court noted there were factors which tended to negate appellant’s incompetency to stand trial and concluded that the record supported the trial court’s determination that the issue of present incompetence did not exist.
. Article 5547-83(a), V.A.C.S., provides:
“The judicial determination under this Code that a person is mentally incompetent creates a presumption that the person eon-*890tinues to be mentally incompetent until he is discharged from the mental hospital or until his mental competency is re-determined by a court.”
. The case of Holder v. State, 406 S.W.2d 436 (Tex.Cr.App.1966) should be distinguished. There, this Court held that the issue of the accused’s present insanity was not raised where he offered into evidence an order showing that two years before, he had been temporarily committed for 90 days.