(dissenting).
As noted in the majority opinion, the revocation of probation proceedings against this appellant and against Jerry Dean Mitchell were held at the same time. At the conclusion thereof, the trial judge stated:
“Well, of course, you fellows have done a good job. I will have to say that. I am like King Agrippa when he said, ‘Paul, thou almost persuadest me.’ But we do have a case that the State has brought evidence on and it isn’t beyond a reasonable doubt admittedly and I don’t have the wisdom and knowledge to know who is telling the truth and who isn’t. I certainly don’t get any pleasure out of revoking a probation and sending either of these boys to the Texas Department of Corrections, but I also know that we have got to have law and order. For that reason and under the facts, I am going to revoke the probation of both of these boys.” (emphasis supplied)
It is clear that the trial court did not use the reasonable doubt standard of proof which appellant claims he should have used, nor is it altogether clear what standard he did use. Appellant relies upon In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Apparently for the first time, the question of the burden of proof required in a revocation of probation proceeding is squarely presented.
This court has repeatedly said that once probation ‘has been granted, it should not be arbitrarily withdrawn by the court, and the court is not authorized to revoke without having found that the probationer has *474violated a condition of his probation.1 Certainly there is a presumption of innocence. And it has also been stated that the burden of proof in revocation proceedings to show such a violation of a probationary condition is upon the State.2 However, the standard of proof has never been adequately discussed. This court has not addressed itself to the question of whether the burden of proof is “beyond a reasonable doubt,” “by a preponderance of the evidence,” “by clear and convincing proof” or some other acceptable standard.
This court has held on a number of occasions that revocation proceedings are not criminal trials in the constitutional sense.3 Since the earlier decisions of this court, however, concerning the nature of revocation proceedings, it is now clear that while a state is not constitutionally required to provide for probation revocation hearings as a part of its criminal process anymore than it is required to provide for appellate review, but that when it does, then due process and equal protection of the law is fully applicable thereto.4
The necessity of the application of due process and equal protection to revocation proceedings was recognized by this court in Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970), where it was also stated:
“It would indeed now be difficult to conclude that probation revocation hearings are not criminal proceedings 'where substantial rights of an accused may be affected.’ Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336. The revocation proceedings cannot be isolated from the context of the criminal process. See Crawford v. State, Tex.Cr.App., 435 S.W.2d 148.” 456 S.W.2d at 921-922.
See also McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968).
And only recently in Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971), which involved an application for writ of mandamus, the Texas Supreme Court held that a proceeding to revoke probation is a “criminal prosecution” within the state constitution and a probationer was entitled to a speedy trial and further that the speedy trial provision of the Sixth Amendment of the United States Constitution was a due process requirement applicable to state revocation proceedings through the Fourteenth Amendment. See Article 24, Vernon’s Ann.P.C.
Certainly it has been recognized that a revocation proceeding is a critical stage of the criminal process where counsel must be appointed if the probationer is indigent, without counsel and has not been warned of the same.5
In Re Winship, supra, held that proof beyond a reasonable doubt, which is re*475quired by the due process clause in criminal trials, is among the “ ‘essentials of due process and fair treatment’ required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.” 397 U.S. at 359, 90 S.Ct. at 1070.6
The Supreme Court noted that proof beyond a reasonable doubt in criminal cases dated from our early years as a nation and that such standard “. . . plays a vital role in the American scheme of criminal procedure.” 397 U.S. at 363, 90 S.Ct. at 1072. “It is,” the court stated, “a prime instrument for reducing the risk of convictions resting on factual error.” Id. See also Article 38.03, Vernon’s Ann.C. C.P., establishing the reasonable-doubt standard in all criminal cases in Texas.
The court further wrote in Winship: “. . . As we said in Speiser v. Randall, supra, 357 U.S. [513] at 525-526, 78 S.Ct. [1332], at 1342 [2 L.Ed.2d 1460] : ‘There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value— as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden of . persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . convincing the factfinder of his guilt.’ To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967).
“Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. . . .” (emphasis supplied) 397 U.S. at 364, 90 S.Ct. at 1072.
Further, the late Mr. Justice Harlan in his concurring opinion in Winship wrote:
“. . . Although the phrases ‘preponderance of the evidence’ and ‘proof beyond a reasonable doubt’ are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.” 397 U.S. at 370, 90 S.Ct. at 1076 (concurring opinion).
And the majority opinion rejected the suggestion that there was only a “tenuous difference” between the reasonable-doubt and preponderance standards.
“. . . In this very case, the trial judge’s ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge’s action evidences the accuracy of the observation of commentators that ‘the preponderance test is susceptible to the misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the *476evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.’ Dorsen & Rezneck, supra, at 26-27.” 397 U.S. at 367-368, 90 S.Ct. at 1074.
The majority opinion noted that In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) decided that, although the Fourteenth Amendment does not require that the adjudicatory stage of a juvenile delinquency proceeding conform with all the requirements of a criminal trial or even of the usual administrative proceeding, the due process clause does require application during such stage of “the essentials of due process and fair treatment.” The court concluded that the constitutional safeguard of proof beyond a reasonable doubt was as much required in such proceedings as those safeguards applied in Gault• — notice of charges, right to counsel, rights of confrontation and examination, and the privilege against self-incrimination.
The appellant urges that the holding in Winship compels the application of the reasonable-doubt standard to revocation of probation cases. It, at least, logically follows. To hold that adult probationers are to be denied due process under the correctional rhetoric of in-loco parentis or for other reasons while juveniles are receiving due process would be, in my opinion, an arbitrary distinction and would raise serious equal protection issues as well as due process considerations.7
When all the legal niceties are laid aside, a proceeding to revoke probation involves the right of an individual to continue at liberty or to be imprisoned. It involves the possibility of a deprivation of liberty just as much as original criminal action or juvenile delinquency proceeding. The fact-finding process is just as adverse as in other proceedings where the accused is afforded due process rights including the reasonable-doubt standard.
In Note, 1971 Wis.L.Rev. 648, 657, it is written:
“. . . At numerous other steps in the criminal procedure where liberty is threatened, the Constitution has been construed to guarantee due process. This is always the case at the original trial. Revocation of probation is not merely a reconsideration of the old charges with a new sentence. It is the imposing of an old sentence due to new allegations. The chance that these new allegations may be wrong is just as great as the chance that the original charges were wrong. The chance for error or arbitrary justice is no less great the second time and ‘liberty’ no less valuable.”
It has been held in this state that the result of a hearing to revoke probation is not a “conviction” but a finding upon which the trial court might exercise its discretion by revoking or continuing probation.8 And as noted earlier, this court has. frequently said that revocation hearings are not trials in the constitutional sense.
This same type of reasoning was advanced in Winship in support of the claim that there had been no deprivation of due process and that the reasonable-doubt standard of proof was not required in juvenile proceedings. It found favor with the New York Court of Appeals but was expressly rejected by the United States Supreme Court who noted that labels and good intentions do not obviate the need for criminal due process safeguards in *477juvenile courts where the possible loss of liberty is involved.
Certainly the use of the reasonable-doubt standard in Texas revocation of probation proceedings need not necessarily disturb the earlier Texas decisions nor have any real effect on the flexibility or speed of the revocation hearing at which the fact-finding takes place. I venture to say that most trial judges in Texas use the reasonable-doubt standard in revocation proceedings- anyway, whether stated in their orders of revocation or not. It is the burden of proof that most criminal trial judges are accustomed to applying. See Article 38.03, supra.
I would hold that the constitutional safeguard of proof beyond a reasonable doubt as a matter of due process and fundamental fairness is required in Texas revocation of probation proceedings along with the right to counsel, speedy trial, etc.9
When one assesses the consequences of an erroneous factual determination in a revocation of probation proceeding in which the probationer is accused of violating a probationary condition, I think it must be concluded that while the consequences are not altogether identical to those in a criminal trial or those in a juvenile delinquency proceeding, the differences will not support a distinction in the standard of proof.
The reasonable-doubt standard provides concrete substance for the presumption of innocence that surely prevails in revocation hearings. Cf. In Re Winship, supra, 397 U.S. at 363, 90 S.Ct. 1068, 25 L.Ed.2d 368.
The majority characterizes my conclusion as logically inconsistent, and judicially unsound which is their privilege. I am perfectly willing to allow my conclusion to stand the test of time. The majority does not seem to have the same confidence.
Although rejecting the reasonable-doubt standard, the majority fails to inform the bench and bar what standard should be applied in revocation proceedings and how the instant case met that standard. This is indeed regrettable.
*478I am not impressed by the majority’s mere recitation that revocation proceedings are not trials in the constitutional sense, the judge is the sole trier of the facts, the only question on appeal is abuse of discretion, that the court did not have to grant probation in the first place as if all this somehow properly determines the proper burden of proof in revocation hearings.
“It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.” Hyde v. United States, 225 U.S. 347, 391, 32 S.Ct. 793, 811, 56 L.Ed. 1114 (1912) (Holmes, J., dissenting).
And it concerns me that in rejecting the reasonable-doubt standard and in failing to fix any other standard the majority would take into consideration the fear factor that the able trial judges of this state would be less likely to utilize probation. I have more confidence in our trial judges than that. Just how taking this fear factor into consideration commits the majority to the continued viability of our probation laws, but leaves all others with a different viewpoint uncommitted is a question for one to ponder. And should fear of what someone will do or not do govern this court’s determination of whether the constitution and laws of the United States and this state require? I should hope not.
I am aware, of course, of the recent 4-3 holding in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), that Winship does not constitutionally require that a trial judge find a confession voluntary beyond a reasonable doubt before admitting it into evidence following a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing. There the court upheld the Illinois court’s use of the “by a preponderance of the evidence” standard. States were left free, however, to adopt a higher standard and many have already done so.9A The court noted the petitioner had offered nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard than the preponderance standard. I do not read Lego v. Twomey as limiting or undermining Winship or calling for a different result than I have reached. We are not here dealing with the burden of proof on an admissibility ruling and far different values are involved.
Surprisingly there have been few cases where the issue here presented has been urged and considered. In State v. Leighty, 5 Wash.App. 30, 485 P.2d 91 (1971), the defendant did raise the same issue and relied upon Winship. The Washington Supreme Court rejected the argument outright without discussion and cited cases decided prior to Winship to the effect that “ . [a] 11 that is required is that the evidence and facts be such as to reasonably satisfy the court that the probationer is ‘violating the terms of his probation, . . . ’” 485 P.2d at 92. Such holding without any in-depth consideration of Winship is not persuasive as far as I am concerned.
Prior to Winship a number of courts made similar decisions as to the burden of proof.10 And since Winship other courts have reached the same result rejecting the reasonable-doubt standard without mention *479of Winship.11 The Illinois courts have consistently held that the burden of proof in their revocation proceedings is by a preponderance of the evidence. None of the cases considered Winship.12
It is also true that the American Bar Association Project on Standards for Criminal Justice, Standards Relating to Probation § 5.4(a) at 65-67 (Approved Draft 1970), provides that the prosecution “ . should have the burden of establishing the occurrence of the violation by a preponderance of the evidence. ...” Here again this standard was adopted prior to and without consideration of Winship.
Further, it is significant to me that such standards also recommend that a revocation proceeding based solely upon commission of another crime ordinarily should not be initiated prior to the disposition of that charge. See § 5.3 id. This means that the penal offense which forms the basis of the revocation will have first been disposed of in a court of competent jurisdiction in a trial where the burden of proof is beyond a reasonable doubt. This is, of course, not the practice or rule in Texas. See Footnote No. 9 hereof.
And it is to be observed that a new criminal offense is typically the most frequent and serious way in which probationary conditions can be violated. This may well have had a bearing on the adoption prior to Win-ship of a lesser burden of proof than reasonable doubt by such standards.
Those who would espouse the preponderance of the evidence standard would do well to consider what the late Mr. Justice Harlan said in his concurring opinion in Winship:
“When one makes such an assessment, the reason for different standards of proof in civil as opposed to criminal litigation becomes apparent. In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence.’
“In a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. . . . ”
*480Then he added that the requirement of proof beyond a reasonable doubt is “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. . . . ”
Those who would urge the adoption of a preponderance-of-evidence standard, to paraphrase Mr. Justice Harlan, must be prepared to defend the view that it is no more serious in general to continue a probationer on probation than to revoke probation causing him imprisonment and depriving him of his liberty. See also Mr. Justice Brennan’s dissent, Lego v. Twomey, supra.
Further, even in deportation proceedings, the Supreme Court has rejected the preponderance standard and ruled the Government must support its allegations with “clear, unequivocal, and convincing evidence.” Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 285, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966). The court noted that deportation is not tantamount to a criminal conviction. The court found it could lead to “drastic deprivations” and that it was impermissible for a person to be “banished from [his] country upon no higher degree of proof that applies in a negligence case.”
The revocation of probation involves more than “drastic deprivations.”
For the reasons stated above, I would reverse this cause for the failure of the trial court to apply the proper standard of proof —that of reasonable doubt.
Appellant also urges that regardless of the standard of proof utilized, the evidence is insufficient to show that he failed to “avoid persons or places of disreputable or harmful character” in violation of his probation. The amended motion to revoke alleged the disreputable or harmful persons were Jerry Mitchell, Bernie Prachyl and Marion Harper, and the disreputable or harmful place was “611 South Dallas Street, Ennis, Ellis County, Texas.”
The record reflects that neither Prachyl or Harper had criminal records or that appellant had personal knowledge that either used marihuana, etc. Mitchell had been convicted of possession of marihuana, but at the time of Mitchell’s conviction in Ellis County appellant was in the Army in El Paso or Viet Nam. Further, he knew Mitchell only by name and had never even spoken to him. When the arrest was made, appellant was in the kitchen of the premises eating a piece of cake. None of the named individuals was in the same room and no marihuana was found there or on appellant’s person. The majority expresses doubt that the evidence is sufficient to show that he knew the three individuals named in the pleadings were of disreputable or harmful character as required by Jackson v. State, 464 S.W.2d 153 (Tex.Cr.App.1971); Steed v. State, 467 S.W.2d 460 (Tex.Cr.App.1971) and Shortnacy v. State, 474 S.W.2d 713 (Tex.Cr.App.1972). I agree.
The remaining question is whether the evidence shows that the place in question was of disreputable and harmful character. The motion to revoke alleged “611 South Dallas Street in Ennis” while the proof showed that the premises in question were 61U/2 South Dallas Street, Ennis, a garage apartment occupied by Bernie Prachyl. The evidence, in my opinion, is insufficient to reflect that these particular living quarters bore a bad reputation and that such reputation was known to the appellant and that he did not avoid the same. The majority concludes that since appellant admitted smoking marihuana in Viet Nam, had been convicted of possession of marihuana, he should have somehow detected the odor of marihuana the officers claimed was present in the other room and should have known at that moment the place was harmful to him (since he was on probation) and should have departed before the arrival of the police. I cannot conclude that such evidence was sufficient to reflect a violation of the probationary condition alleged regardless of the standard of proof used.
Appellant also advances the contention that condition of probation allegedly vio*481lated was “indefinite and uncertain.” The majority expressly recognizes such contention but, in affirming the conviction, fails to answer the contention. We are left to wonder at their conclusion, if any. The American Bar Association Project on Standards for Criminal Justice, Standards Relating to Probation § 3.2(b), provides that probationary conditions “should not be so vague or ambiguous as to give no real guidance.” This suggests the impropriety of imposing conditions which achieve such a level of generality as to be of no particular value. All such conditions should be explicit primarily as an aid to the offender in increasing his understanding of what is expected of him.
In this same connection, I do note, in passing, that the judgment entered simply reflects: “Imposition of sentence suspended. Defendant placed on probation for said time in accordance with the provisions of Article 42.12 of the Texas Code of Criminal Procedure.” No conditions of probation were set out in the judgment nor is there to be found a separate order granting probation or any other instrument or entry setting forth the probationary conditions. The first mention of any probationary condition imposed is found in the motion to revoke.
When a defendant is granted probation there are no automatic conditions thereby imposed. The trial judge must decide what conditions are to be imposed. Article 42.12, § 6, Vernon’s Ann.C.C.P. And this is true whether the trial judge grants probation, as in the instant case, or whether probation is recommended by the jury. In the latter situation, the trial judge is limited to those conditions suggested in the statute, but he is certainly not required to impose all of them. This court has repeatedly held it incumbent upon the trial judge to incorporate in his order or judgment granting probation the conditions upon which the accused was being released “ . . .so that the accused and the authorities may know, with certainty, what those conditions are.” Ex parte Pittman, 157 Tex.Cr.R. 301, 248 S.W.2d 159, 165 (1952) ,13
In addition to the absence of anything in the record to show what conditions, if any, were imposed by the trial judge, the record fails to reflect a compliance with § 6 of Art. 42.12, supra, which requires the clerk to furnish a copy of the terms and conditions to the probationer and note the delivery of the same upon the docket of the court. See McShan v. State, 458 S.W.2d 78 (Tex.Cr.App.1970).
For the reasons stated, I would reverse this conviction finding an abuse of discretion.
. Wozencraft v. State, 388 S.W.2d 426 (Tex.Cr.App.1965); Campbell v. State, 456 S.W.2d 918, 922 (Tex.Cr.App.1970); Jackson v. State, 464 S.W.2d 153 (Tex.Cr.App.1971). See also United States v. Taylor, 449 F.2d 117 (9th Cir. 1971).
. Zane v. State, 420 S.W.2d 953 (Tex.Cr.App.1967); Campbell v. State, supra note 1; Perry v. State, 459 S.W.2d 865 (Tex.Cr.App.1970); Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969).
. Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774 (1951) ; Leija v. State, 167 Tex.Cr.R. 300, 320 S.W.2d 3 (1958); Hulsey v. State, supra note 2; and cases there cited.
. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) ;
Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
See Hoffman v. State, 404 P.2d 644 (Alaska 1965); Williams v. Commonwealth, 350 Mass. 732, 216 N.E.2d 779 (1966); Blea v. Cox, 75 N.M. 265, 403 P.2d 701 (1965).
See also this writer's original dissent in Crawford v. State, 435 S.W.2d 148, 150 (Tex.Cr.App.1968).
Cf. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).
. Art. 42.12, Vernon’s Ann.C.C.P.; Ex parte Williams, 414 S.W.2d 472 (Tex.Cr.App.1967) ; Mempa v. Rhay, supra. Mempa holding as to the right to counsel at probation revocation proceedings applies retroactively. McConnell v. Rhay, supra; Ex parte McDonald, 469 S.W.2d 173 (Tex.Cr.App.1971).
*475See also Crawford v. State, supra; Eiland v. State, 437 S.W.2d 551 (Tex.Cr.App.1969); Ex parte Fletcher, 442 S.W.2d 705 (Tex.Cr.App.1969); Ex parte Fuller, 435 S.W.2d 515 (Tex.Cr.App.1969); Ex parte Buffington, 439 S.W.2d 345 (Tex.Cr.App.1969); Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970).
. See also Santana v. State, 431 S.W.2d 558 (Tex.Civ.App. — Amarillo 1968), rev’d 444 S.W.2d 614 (Tex.1969), vacated and remanded for reconsideration in light of Winship, 397 U.S. 596, 90 S.Ct. 1350, 25 L.Ed.2d 594 (1970) (per curiam), dism’d with prejudice on remand 457 S.W.2d 275 (Tex.1970) (per curiam).
. In Winship, the Supreme Court said: "The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child.” 397 U.S. at 365, 90 S.Ct. at 1073. Cf. Note, 1971 Wis.L.Rev. 648, 654-55.
. Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589 (1954); Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566 (Tex.Cr.App.1961) ; McDonald v. State, 393 S.W.2d 914 (Tex.Cr.App.1965).
. Under Texas procedure when a probationer is accused of having violated his probationary conditions by committing a penal offense, he is not entitled to require that prior to revocation there be a trial and conviction in a court of competent jurisdiction for the offense which forms the basis of the revocation where the burden of proof would be beyond a reasonable doubt. Dunn v. State, supra note 7; Ex parte Bruinsma, 164 Tex.Cr.R. 358, 298 S.W.2d 838 (1957), cert. den. sub nom., Bruinsma v. Ellis, 354 U.S. 927, 77 S.Ct. 1386, 1 L.Ed.2d 1439; Gorman v. State, 166 Tex.Cr.R. 633, 317 S.W.2d 744 (Tex.Cr.App.1958) ; Hulsey v. State, supra note 2.
This was a requirement of the former Suspended Sentence Daw (Art. 776-781, Vernon’s Ann.C.C.P., 1925), but not of the Adult Probation Law. (Art. 42.12, Vernon’s Ann.C.C.P.). The fact that an offense has never been formally filed, or if filed, the indictment or other accusatory pleadings have been dismissed, or the fact that the probationer has been charged and acquitted of such offense, before or after the revocation, does not prevent the use of such as the basis for revocation of probation.
And such probationer is not entitled to a jury trial to determine if his probation should be revoked. Art. 42.12, § 8, supra; Hulsey v. State, supra note 2; Dunn v. State, supra note 7.
Further, probation may be revoked for violation of any penal offense; it is not restricted to a violation of a felony or a misdemeanor involving moral turpitude. Jackson v. State, 165 Tex.Cr.R. 380, 307 S.W.2d 809 (1957).
Revocation proceedings are often characterized by their informality, relaxation of rules of admissibility of evidence, absence of jury, etc. If we add to these factors a lesser burden of proof than reasonable doubt, we lay the groundwork for abuse of such proceedings.
Can it really be said that due process, under these circumstances, does not require before deprivation of liberty a reasonable-doubt standard? And if applicable to revocations based on a violation of probationary conditions prohibiting commission of penal offenses, should it not be applicable to all other alleged violations which can just as easily result in deprivation of liberty?
. See Footnote No. 1 of Lego v. Twomey, supra. While the burden of proof on such admissibility ruling does not appear to have been squarely decided in this state, it has been discussed. See Hill v. State, 429 S.W.2d 481 at 487-488 (Tex.Cr.App.1968) ; Nash v. State, 477 S.W.2d 557 (Tex.Cr.App.1972). In Nash, the trial judge used the reasonable-doubt standard as most Texas judges do.
. e. g., Manning v. United States, 161 F.2d 827, 829 (5th Cir. 1947) ; United States v. Bryant, 431 F.2d 425 (5th Cir. 1970) ; United States v. Langley, 438 F.2d 91 (5th Cir. 1970) ; United States v. D’Amato, 429 F.2d 1284 (3rd Cir. 1970) ; Reinmuth v. State, 163 Neb. 724, 80 N.W.2d 874 (1957) ; People v. Valle, 7 Misc.2d 125, 164 N.Y.S.2d 67 (Ct.Spec.Sess.1957) ; United States v. Nagelberg, 413 F.2d 708 (2nd Cir. 1970), cert. den. 396 U.S. 1010, 90 S.Ct. 569, 24 L.Ed.2d 502 (1970).
. Dickson v. State, 124 Ga.App. 406, 184 S.E.2d 37 (1971) ; Smith v. State, 11 Md.App. 317, 273 A.2d 626 (1971) ; Raper v. State, 462 S.W.2d 261 (Tenn.Cr.App.1970; United States v. Lauchli, 427 F.2d 258 (7th Cir. 1970), cert. den. 400 U.S. 868, 91 S.Ct. 111, 27 L.Ed.2d 108 (1970). It is true that writ of certiorari was denied in United States v. Dauchli, supra, after the date of 'Winship, but “[djenial of certiorari, as has frequently been explained, imports nothing as to the merits of the case. All this means is that, for whatever reason, there-was not four members of the Court who wished to hear the case.” Wright, Federal Courts § 108 at 495 (1970). In Brown v. Allen, 344 U.S. 443, 491-492, 73 S.Ct. 397, 439, 97 L.Ed. 469 (1953), the court wrote:
“Thirty years ago the Court rather sharply reminded the Bar not to draw strength for lower court opinions from the fact that they were left unreviewed here. ‘The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.’ United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361.” (Emphasis supplied) See Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-919, 70 S.Ct. 252, 94 L.Ed. 562 (1950) (J. Frankfurter’s opinion on denial of certiorari).
. People v. Majerus, 271 N.E.2d 380 (Ill.App. 1971) ; People v. Griffin, 270 N.E.2d 444 (Ill.App.1971) ; People v. Dawes, 270 N.E.2d 214 (Ill.App.1971) ; People v. Latham, 270 N.E.2d 563 (Ill.App.1971) ; People v. Hardnett, 270 N.E.2d 864 (Ill.App.1971) ; People v. Cook, 53 Ill.App.2d 454, 202 N.E.2d 674 (1964).
. Accord, e. g., McDonald v. State, 442 S.W.2d 386 (Tex.Cr.App.1969) ; Stover v. State, 365 S.W.2d 808 (Tex.Cr.App.1963) ; Glenn v. State, 168 Tex.Cr.R. 312, 327 S.W.2d 763 (1959) ; McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748 (1958). See also Walls v. State, 161 Tex.Cr.R. 1, 273 S.W.2d 875 (1954).