DISSENTING OPINION ON STATE’S MOTION FOR REHEARING
DOUGLAS, Judge.In the original opinion the Court wrote that the question presented by this appeal is whether “. . .a trial judge [may] revoke probation and then, after the appellate brief is filed in the trial court under Article 40.09, Section 9, V.A.C.C.P., grant a new trial and conduct a new revocation hearing on an amended motion to revoke probation filed one year after original hearing and the giving of notice of appeal and over six months after expiration of the probationary period or term?” This Court answered that he could not.
Does probation continue while a revocation hearing is on appeal? If probationer does not have to live up to the conditions of probation while the revocation hearing is on appeal, then this Court should hold that the period of probation is abated or suspended. With the period of probation suspended, the term of probation would not run. Therefore, after notice of appeal had been given, the running of the probation period would be tolled. It would follow that the two year term of probation had not expired and the trial court had jurisdiction to enter its order of revocation on the amended or new motion.
The State’s motion for rehearing should be granted.1
. In the opinion of the writer it would be better for this Court to hold that probation is in effect with all of its conditions from the time it is originally granted. A probationer should not be able to suspend probation by the mere giving notice of appeal. He is, in effect, by his own wrongdoing and appeal setting the probation aside. Probation should be construed to be a status. After a revocation hearing the original probation is not appealed, generally only its revocation is appealed. See Gossett v. State, 162 Tex. Cr.R. 52, 282 S.W.2d 59 (1955). If probation is permitted to run as it should after notice of appeal has been given, then several motions to revoke might be filed on the probationer before the term of probation has expired.
A defendant should not be given credit on the probation time, and then after an appeal and a possible reversal be free even though *543he may have violated the terms of probation several times during the appeal.
Holding that probation is still in effect would be analogous to the holdings under the former driving while intoxicated statute, Article 802b, V.A.P.C. Once a defendant had been convicted of the misdemeanor offense of driving a motor vehicle on a public road while intoxicated, his status was established. Anytime he was charged with driving a motor vehicle upon a public road thereafter, he could be charged as a felon under the subsequent offender statute, Article 802b, supra. Several cases using the prior misdemeanor could be pending at the same time.
This Court should hold that the probationer is subject to the conditions of probation while the revocation proceedings are on appeal. Not doing this, the Court should hold that the period of probation is tolled during appeal, and a probationer must live up to the terms of probation as ordered by the trial judge.
An amendment to the statutes is needed to allow probation to run or to abate probation while the revocation proceedings are on appeal.