ON APPELLANT’S MOTION FOR REHEARING
ONION, Presiding Judge(dissenting).
The majority has overruled the appellant’s motion for rehearing without written opinion. To such action I dissent.
This appeal is from an order revoking probation wherein the appellant contends *892that the trial court abused its discretion “as the evidence introduced during revocation of probation1 became sufficiently manifest as to appellant’s present incompetance (sic) so that to require under due process of law to halt the trial and conduct a hearing on that issue on his own initiative before proceeding further.”
The record reflects that on October 5, 1970, the appellant waived trial by jury and entered a plea of guilty to the indictment charging him with the offense of driving a motor vehicle upon a public highway while intoxicated, subsequent offense. The court assessed the punishment at five (5) years, but suspended the imposition of the sentence conditioned in part that he “(a) Commit no offense against the laws of this State or any other State or the United States.”
On March 31, 1972, the State filed its motion to revoke probation alleging that on or about March 4, 1972, appellant committed the offense of being drunk in a public place “to wit: the Bull Shed, a place where people go to dance and for public amusement” and that on the same date he did make an obscene and indecent exhibition of his person.
On April 10, 1972, appellant filed a motion entitled “Motion to Dismiss” the State’s motion to revoke on the ground he was “under an indefinite commitment of insanity from the County Court of Nacog-doches County . . . .’’in Cause No. 1457 and that he was “unable to stand trial.” On April 20, 1972, a subsequent “Motion to Dismiss” was filed based on the same ground and further alleging the appellant was under an indefinite commitment at the very time he entered his plea of guilty to the felony offense here involved.2
On April 26, 1972, a hearing was held on appellant’s motion to dismiss.3
At such hearing it was shown that on August 24, 1964, the appellant had been committed to the Rusk State Hospital for temporary hospitalization as a mentally ill person based upon an examination by two doctors, both of whom certified to the County Court that the appellant was mentally ill. On October 29, 1964, the record reflects that the appellant was committed to the Rusk State Hospital for an indefinite period as a “mentally incompetent” person. At the time of such commitment the appellant was in such hospital.
The County Clerk testified that the records of the County Court did not reflect that the appellant had ever been restored.
The “Motion to Dismiss” was overruled and the State proceeded to offer its evidence on the motion to revoke. Doug Nicholas, owner of the “Bull Shed,” testified his place was one of public amusement where people danced and where he served Cokes, setups and sandwiches. He related that about 10:30 p. m. on March 4, 1972, he discovered the appellant urinating near the entrance to his business establishment while men and women were entering such place. He expressed the opinion appellant was intoxicated. Two Highway Patrolmen, who were called to the scene and arrested the appellant, expressed the opinion that the appellant was intoxicated.
*893It was this evidence, along with those records of the instant case of which the trial judge could take judicial knowledge, which the appellant contends should have caused the trial court to halt the proceedings and have a hearing to determine competency.
Among the records in this instant case, we find the following:
The indictment in the felony driving while intoxicated case was filed on March 11, 1970, alleging the prior conviction and that the subsequent offense occurred on or about February 21, 1970. The docket sheet in such cause reflects that appellant’s first motion for continuance was granted with the notation “Defendant in Rusk State Hospital.” As earlier noted, the plea of guilty to the felony case was entered on October 5, 1970. The transcription of the court reporter’s notes of such guilty plea is not in the record before us. The printed judgment form reflects that “. . . and it appearing to the Court that the Defendant is sane ...” Nothing before us reflects whether the court heard any evidence or conducted any inquiry into appellant’s competency at the time.
On original submission the majority concluded that the finding in the judgment entered on the plea of guilty regarding sanity acted as a restoration of competency and that “Such finding would of necessity remove any pre-existing presumption arising from appellant’s commitments in 1964.”
The majority thus concluded that one method of restoration of competency after a person has been committed for an indefinite period as a mentally incompetent person is for such person to be charged with a felony, come before a District Judge and plead guilty and have such judge make a finding that it appears the person is sane, without any requirement that evidence be heard on the issue, etc. This is true, for this court has held that to satisfy the requirements of Article 26.13, Vernon’s Ann. C.C.P., the court need not hear evidence or make inquiry into the competency of a defendant unless an issue is made of the same. Zepeda v. State, 110 Tex.Cr.R. 57, 7 S.W.2d 527 (1928); Ring v. State, 450 S.W.2d 85, 88 (Tex.Cr.App.1970); Kane v. State, 481 S.W.2d 808 (Tex.Cr.App.1972); Williams v. State, 497 S.W.2d 306 (Tex.Cr.App.1973); White v. State, 495 S.W.2d 903 (Tex.Cr.App.1973); Thorn v. State, 491 S.W.2d 425 (Tex.Cr.App.1973) and cases there cited.
And it should be borne in mind that in cases where there is a prior unvacated judgment of insanity the presumption of the sanity of a criminal defendant disappears and the burden of proof is placed upon the State beyond a reasonable doubt to show the sanity of the accused. Breland v. State, 489 S.W.2d 623 (Tex.Cr.App.1973); Nilsson v. State, 477 S.W.2d 592 (Tex.Cr.App.1972); Ex parte Tuttle, 445 S.W.2d 194 (Tex.Cr.App.1969); Fuller v. State, 423 S.W.2d 924 (Tex.Cr.App.1968); Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612 (1952) ; Murray v. State, 147 Tex.Cr.R. 474, 182 S.W.2d 475 (1944).
I find it regrettable that the majority found it necessary to hold that a trial court’s findings on a guilty plea as to sanity where there is no requirement of a hearing, etc., restores the individual to competency where there is a prior unvacated adjudication of incompetency where the same would not be true if there was a not guilty plea and evidence of the prior adjudication is offered.
Actually, in my opinion, the majority need not have made such a holding. If the finding on the guilty plea did not restore the appellant’s competency, then when the unvacated adjudication of mental incompetency was offered the burden of proof shifted to the State to show his competency to stand trial beyond a reasonable doubt. If it can be argued that the finding on the guilty plea was in fact a res*894toration proceeding and did remove any preexisting presumption, nevertheless, the evidence before the trial court showed a long period of mental difficulties, lapse of approximately two and one half years from the guilty plea to the time of the revocation hearing together with the claims that he was not competent to defend himself, and the fact of his unusual,conduct alleged to be a violation of the probationary conditions. I cannot reach any other result under the given circumstances except that the trial court erred in not conducting a separate competency hearing before a jury before concluding the revocation hearing. I cannot reach any other result under the given circumstances except that evidence of appellant’s present incompetency was sufficiently manifest at the revocation hearing so that the due process of law would require the trial court to halt the proceedings on his own initiative and conduct a separate competency hearing before a jury before proceeding further. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); Vardas v. State, 488 S.W.2d 467 (Tex.Cr.App.1973).4
Further, it should be remembered that an accused is not required to prove actual insanity or incompetency to stand trial before the trial court is required to conduct a separate hearing on the matter. Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App.1973). “If this were the rule, the separate hearing procedure would become meaningless.” Ainsworth v. State, supra; Perryman v. State, 494 S.W.2d 542 (Tex.Cr.App.1973).
For the reasons stated, I dissent to the court’s action in overruling appellant’s motion for rehearing.
ROBERTS, J., joins in fhis dissent.. From the agreement advanced in support of such contention, it appears that appellant is also relying upon the evidence offered in support of his “Motion to Dismiss Petition for Revocation of Probation.”
. The record is in some confusion. We find another “Motion to Dismiss” filed on February 10, 1971, but no motion to revoke in the record to which it might relate. The motion to dismiss was overruled.
.It is obvious that the motion was mislabeled because the appellant would not have been entitled to have the revocation motion dismissed or quashed because he was incompetent to stand trial anymore than an indictment should be dismissed because the accused is presently insane or incompetent to stand trial on the merits.
. While Pate v. Robinson, supra, would not require a jury finding on the issue, Texas law would. Townsend v. State, supra footnote #3.