(concurring).
In view of the importance of the decision reached in this case, I concur in the majority opinion, but feel that I should more fully express my reasons.
Appellant urges this court to require the utilization of the reasonable doubt standard in revocation hearings. I can find nothing which indicates that either common sense or the Constitution of the United States requires the state to meet this burden.
Whether a person convicted of a crime should be placed on probation rests within the sound discretion of the trier of fact, e. g. Smith v. State, Tex.Cr.App., 468 S.W.2d 828; Campbell v. State, Tex.Cr.App., 456 S.W.2d 918; Glass v. State, Tex.Cr.App., 450 S.W.2d 320; Ponce v. State, Tex.Cr.App., 398 S.W.2d 570; Stratmon v. State, 169 Tex.Cr.R. 188, 333 S.W.2d 135. As this court stated in Campbell v. State, supra: “ . . . there is no right to either the court’s or the jury’s grace. . . . ” An accused seeking probation bears the burden of proving his eligibility under the requirements of the Adult Probation Law. e. g. Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732; Herring v. State, Tex.Cr.App., 440 S.W.2d 649.
The granting of probation serves the function of protecting society while providing a means of rehabilitating lawbreakers. See, Mempha v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) ; Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); Hill v. State, Tex.Cr.App., 480 S.W.2d 200 (1972). In order to effectuate this purpose, this court has always held that the relationship between the probationer and the trial court is contractual in nature, e. g. McDonald v. State, Tex.Cr.App., 442 S.W.2d 386; Glenn v. State, 168 Tex.Cr.R. 312, 327 S.W.2d 763.
As the Supreme Court of the United States wrote in Burns v. United States, supra, a probationer
“ . . .is still a person convicted of an offense, and the suspension of his sentence remains within the control of the court. The continuance of that control ... is essential to the accomplishment of its beneficient purpose, as otherwise probation might be more reluctantly granted, or, when granted, might be made the occasion of delays and obstruction which would bring reproach upon the administration of justice.”
Thus a probation revocation hearing is not a criminal trial. Hill v. State, supra; Cooper v. State, Tex.Cr.App., 447 S.W.2d 179; Hulsey v. State, Tex.Cr.App., 447 S.W.2d 165; Manning v. State, Tex.Cr.App., 412 S.W.2d 656. It is, instead, administrative in nature. United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970); United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970), aff’d per curiam, 438 F.2d 1027 (5th Cir. 1971); cert. denied, 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed.2d 160 (1972); Hill v. State, supra. As this court stated in Hulsey v. State, supra:
“ . . . the result of such a hearing to revoke is not a ‘conviction’ but a finding upon which the trial court might exercise its discretion by revoking or continuing probation.”
Even where the state has shown a violation of the probationary terms, the trial judge is vested with the discretion to allow the probationer to continue on probation. Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589.
A probation revocation being administrative in nature, procedural and evidentiary requirements are not enforced as strictly as they would be in a criminal trial. This court has held: (1) that, where a probationer admits that he has violated a probationary term, no further evidence need be heard in order for the trial court to revoke *472probation1; (2) that appointed counsel need not be afforded ten days to prepare for such a hearing2; (3) that there is no necessity that the state obtain a final conviction for an offense alleged as grounds for revocation before the court can revoke 3; (4) that a probationer does not have a right to trial by jury at a revocation hearing4; and (5) that the testimony of an accomplice witness need not be corroborated in order for the evidence to be sufficient to support the decision of the court to revoke.5
Appellant now asks this court to saddle the administration of the probationary system with a standard of proof which would completely undermine its effectiveness. Appellant asks us to believe that such a result is required by the due process clause under the holding of the United States Supreme Court in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). His reliance on that case is misplaced.
Any inquiry into—
“ . . . what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” 6
In Winship, the court was presented with a situation in which a twelve year old boy had been adjudged to be a juvenile delinquent. The judge of the New York Family Court found that the boy had committed the offense of larceny. Under New York law, the boy was liable to confinement for as long as six years. Since the child was being punished for the commission of the penal offense, the court held that his guilt must be proven beyond a reasonable doubt.7
To apply the holding of Winship to a probation revocation hearing would be a complete denial of the reasoning in that case, because, where a person is not being held criminally liable for his prior acts, Winship has no application. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Tippett v. Maryland, 436 F.2d 1153 (4th Cir. 1971). See also Nilsson v. State, Tex.Cr.App., 477 S.W.2d 592 (1972). In a probation revocation hearing, guilt has already been determined.
In the instant case, appellant is not being held criminally liable because he associated with persons who used narcotics or because he visited places where narcotics were kept. He is being sent to prison because he was convicted on February 4, 1971, by proof beyond a reasonable doubt, of the offense of unlawful possession of marihuana and has since failed to rehabilitate himself by living up to the terms of probation. e. g. Burns v. United States, supra; Hulsey v. State, supra.
On the surface, appellant’s contention that he has been “convicted” of violating the terms of his probation has some appeal. However, I submit that, upon careful analysis, the logical flaws and inherent defects in such contention become apparent.
*473It is important to note that, after careful study, the American Bar Association Project on Standards for Criminal Justice recommended “establishment of the violation by the government by a preponderance of the evidence.” ABA Standards Relating to Probation, Sec. 5.4(iii) (Approved Draft 1970).
This seems to be the accepted procedure in other jurisdictions, e. g. Shaw v. Henderson, 430 F.2d 1116 (Sth Cir. 1970); United States v. D’Amato, 429 F.2d 1284 (3rd Cir. 1970); United States v. Lauchli, 427 F.2d 258 (7th Cir. 1970), cert. denied, 400 U.S. 868, 91 S.Ct. 111, 27 L.Ed.2d 108 (1970); Amaya v. Beto, 424 F.2d 363 (5th Cir. 1970); United States v. Nagelberg, 413 F.2d 708 (2d Cir. 1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 569, 24 L.Ed.2d 502 (1970); State v. Leighty, 5 Wash.App. 30, 485 P.2d 91 (1971); Smith v. State, 11 Md.App. 317, 273 A.2d 626 (1971); Dickson v. State, 124 Ga.App. 406, 184 S.E.2d 37 (1971); People v. Majerus, 271 N.E.2d 380 (Ill.App.1971); People v. Hardnett, 270 N.E.2d 864 (Ill.App.1971); People v. Hayko, 7 Cal.App.3d 604, 86 Cal.Rptr. 726 (1970); Raper v. State, 462 S.W.2d 261 (Tenn.Cr.App.1970); People v. Valle, 7 Misc.2d 125, 164 N.Y.S.2d 67 (Ct.Spec.Sess.1957); Reinmuth v. State, 163 Neb. 724, 80 N.W.2d 874 (1957).
Moreover, the United States Supreme Court has recently declined review in two cases which raised the same contention as raised by appellant herein; once just prior to its decision in Winship 8 and once since that decision.9
Finding no logical or legal reason for destroying the utility of probation as a tool for rehabilitation by requiring that the beyond a reasonable doubt standard be used, I concur.
ROBERTS, J., joins in this concurrence.. Mitchell v. State, Tex.Cr.App., 482 S.W.2d 221 (1972). Where the accused pleads guilty to the commission of a felony, the state still must present other evidence to support the conviction where trial is before the court. Article 1.15, V.A.C.C.P.; Edwards v. State, Tex.Cr.App., 463 S.W.2d 733.
. Hill v. State, supra. In a criminal trial ten days must be afforded under Article 26.04, V.A.C.C.P.
. e. g., Farmer v. State, Tex.Cr.App., 475 S.W.2d 753; Hulsey v. State, supra.
. e. g., Hulsey v. State, supra; Dunn v. State, supra.
. e. g., Barnes v. State, Tex.Cr.App., 467 S.W.2d 437; Dunn v. State, supra.
. Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961).
. It should he noted that the court in Winship was very careful to discuss the fact that requiring the reasonable doubt standard would not affect the informality or flexibility of the juvenile hearing.
. United States v. Nagelberg, 413 F.2d 708 (2d Cir. 1970) ; cert. denied 396 U.S. 1010, 90 S.Ct. 569, 24 L.Ed.2d 502 (1970).
. United States v. Lauchli, 427 F.2d 258 (7th Cir. 1970), cert. denied, 400 U.S. 868, 91 S.Ct. 111, 27 L.Ed.2d 108 (1970). See also Arciniega v. Freeman, 404 U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126 (1971).