concurring in part and dissenting in part.
The applicant is entitled to the relief he seeks, but the majority is not entitled to foul up the admonishment procedures under Article 26.13, V.A.C.C.P., in felony cases in an attempt to reach the right result.
This is not an admonishment “as to the range of punishment” case and should not be treated as such. In doing so the majority only muddies the legal waters and adds to the confusion as to just what the law requires.
The voluntary character of the guilty plea involved was lacking due to the improper involvement of the trial judge in a plea bargaining situation, the direct misrepresentation and inducement of defense counsel as to applicant’s right to probation, compounded by the judge’s promise from the bench to give 10 years’ probation for aggravated robbery when at all times because of the nature of the offense the applicant was not eligible for probation. Any attempt to transform this case simply into some sort of failure to give the proper range of punishment admonishment is incredible.
The record in the post-conviction application for writ of habeas corpus reflects that appellant was indicted for capital murder, attempted capital murder and aggravated robbery. Plea negotiations commenced on August 17, 1981 between the assistant district attorney and the defense counsel. These negotiations led to a conference in the trial judge’s chambers. The prosecutor indicated he would make no specific recommendations but would not oppose probation. The trial judge there agreed to place the applicant on 10 years’ probation for the offense of aggravated robbery. Of course, under the law applicant was not eligible for probation for the offense of aggravated robbery. See Article 42.12, § 3f(a)(l)(D), V.A.C.C.P. After such plea negotiations *780with the prosecutor and judge, the defense counsel went to the applicant and informed him of the agreement. Thereafter a motion for “regular” probation was filed. The State abandoned the other counts of the indictment and the applicant entered a plea of guilty before the court to the offense of aggravated robbery. The trial court properly admonished the applicant of the range of punishment applicable to the said offense. Subsequently in the colloquy with the applicant the trial judge explained there was no agreement by the prosecution as to any plea bargain, however that he, after consultation with the prosecutor and defense counsel, had agreed to assess 10 years’ imprisonment and grant probation. This was not a part of the admonishment as to the range of punishment applicable to the offense as required by Article 26.13, V.A.C.C.P., but a statement as to what the court had agreed to do as to punishment in that particular case as a result of a “plea bargain” about which the court was required to inquire and admonish the appellant in accordance with Article 26.13, V.A. C.C.P.1
The court accepted the guilty plea and placed applicant on probation for 10 years. On July 13, 1984, almost three years later, there was a hearing on the State’s motion to revoke probation which alleged another capital murder and another aggravated robbery, and a failure to report to the probation officer as required. At the hearing it was made known to the court that it had no authority in the first place to have granted probation to the applicant. A discussion ensued whether to proceed on the revocation motion or on a new allegation for revocation that applicant had not been entitled to probation. See Popham v. State, 154 Tex.Cr.R. 529, 228 S.W.2d 857 (1950); Harley v. State, 169 Tex.Cr.R. 341, 334 S.W.2d 287 (1960); Tritt v. State, 379 S.W.2d 919 (Tex.Cr.App.1964); Branch v. State, 477 S.W.2d 893, 896 (Tex.Cr.App.1972); Tamez v. State, 620 S.W.2d 586 (Tex.Cr.App.1981), or to set aside the order of probation. The court chose the latter course and then sentenced the applicant on July 13, 1984. A motion for new trial was filed and heard and then overruled. Applicant appealed. The Court of Appeals dismissed the appeal for want of jurisdiction.
*781See Williams v. State, 692 S.W.2d 545 (Tex.App.-Houston [14th] 1985).2
Subsequently the applicant filed his post-conviction application for writ of habeas corpus in the convicting court. See Article 11.07, Y.A.C.C.P. The trial judge then made findings of facts confirming the conference in chambers and the judge’s agreement to give probation, defense counsel informing applicant of the agreement, applicant’s decision to plead guilty upon counsel’s advice that applicant would get probation, the filing of the motion for probation, the entry of the plea of guilty, the court informing applicant he would get 10 years’ probation, as well as other facts set out. The trial court concluded that applicant was misinformed as to his eligibility for probation by his attorney which the court overtly approved and that he was significantly influenced by such misinformation in entering his guilty plea. The trial court recommended relief be granted citing Ex parte Kelly, 676 S.W.2d 132 (Tex.Cr.App.1984), and Ex parte Evans, 690 S.W.2d 274 (Tex.Cr.App.1985).
It is axiomatic that a plea of guilty or nolo contendere should not be accepted by the court unless it is freely and voluntarily made. Article 26.13, V.A.C.C.P. The constitutional key to the validity of a guilty plea is that it be voluntary and intelligently made. Meyers v. State, 623 S.W.2d 397 (Tex.Cr.App.1981). “There is perhaps no phase of the law regarding the rights of one accused of crime that has been more zealously guarded by the courts than that which requires that a plea of guilty be freely and voluntarily entered by the accused.” Patterson v. State, 156 Tex.Cr.R. 489, 244 S.W.2d 217 (App.1951).
A plea of guilty or nolo contendere will not support a conviction when that plea is motivated by significant misinformation conveyed by the court or one of its officers. Shepherd v. State, 673 S.W.2d 263 (Tex.App.-Houston [1st] 1984), and cases there cited.
Further, a guilty plea is void if induced by promises or threats which deprived it of the character of a voluntary act. Brown v. Beto, 377 F.2d 950 (5th Cir.1967). And an improper plea bargain renders a guilty plea involuntary. Gibson v. State, 532 S.W.2d 69, 76 (Tex.Cr.App.1975), cert. den. 429 U.S. 822, 97 S.Ct. 72, 50 L.Ed.2d 83. Where the plea bargain is not kept, the defendant is entitled to have the conviction set aside because the voluntariness of the guilty plea has been affected.
In the instant case the trial judge improperly engaged in the plea bargaining process,3 agreeing to assess 10 years’ probation. The State did not object, and the *782defense counsel then told applicant of the judge’s agreement and then filed a motion for probation, and advised applicant to plead guilty.4 From the bench the trial judge informed and promised the applicant in open court he would assess 10 years’ probation upon applicant’s plea of guilty. The prosecutor stood idly by apparently because of his agreement not to make a specific recommendation. It is difficult to believe that neither the court nor the attorneys involved were unaware that anyone convicted of aggravated robbery was ineligible for regular probation. Nevertheless, under the circumstances presented it is clear that the plea of guilty was improperly induced, was not voluntarily entered, and that the resulting conviction was void. Defense counsel’s erroneous advice compounded by the trial judge’s actions and promise deprives applicant’s plea of guilty of its voluntary character and entitles him to the relief he seeks. On this basis I concur in the judgment of the court.
I must vigorously dissent, however, to the interpretation given by the majority to Article 26.13, Y.A.C.C.P., applicable in some cases and not in others, dependent apparently upon the trial court’s actions and other circumstances. The majority says, “In some circumstances, however, a trial court may impose a duty upon itself under Article 26.13(a)(1), supra, to admonish a defendant accurately5 as to the availability of probation.” (Emphasis added.) Today it is probation, tomorrow a world of things a trial judge may never guess he was required to do.
Not only is it unnecessary, it is wrong to use this case as a vehicle for enlarging the requirement of admonishment as to “the range of punishment attached to the offense” under Article 26.13(a)(1), supra.
This Court has long held that Article 26.13, V.A.C.C.P., does not require the trial judge in a felony case to admonish the defendant upon his plea of guilty or nolo contendere as to his eligibility or right to probation. Wilson v. State, 436 S.W.2d 542 (Tex.Cr.App.1968); Gonzales v. State, 456 S.W.2d 137 (Tex.Cr.App.1970); Vasquez v. State, 477 S.W.2d 629 (Tex.Cr.App.1972); Brown v. State, 478 S.W.2d 550 (Tex.Cr.App.1972). The trial judge does not have to tell the defendant of his right to make application or motion for probation. Vasquez v. State, supra; Graham v. State, 498 S.W.2d 197 (Tex.Cr.App.1973), or that the jury as well as the court has the authority to grant probation. Wilson v. State, supra; Johnson v. State, 445 S.W.2d 211 (Tex.Cr.App.1969); Laue v. State, 491 S.W.2d 403 (Tex.Cr.App.1973).6
*783And it has been held more recently that the trial judge need not under Article 26.13, supra, admonish a defendant as to the consequences of deferred adjudication, Shields v. State, 608 S.W.2d 924, 927 (Tex.Cr.App.1980); McNew v. State, 608 S.W.2d 166 (Tex.Cr.App.1980), although it might be better practice to do so. McNew v. State, supra.
It has also been held that Article 26.13, supra, does not require that the admonishment as to the range of punishment include telling a defendant his conviction upon his plea of guilty may later be used for enhancement of punishment in a subsequent case. Green v. State, 491 S.W.2d 882 (Tex.Cr.App.1973); Cooper v. State, 492 S.W.2d 645 (Tex.Cr.App.1973). Further, the trial court is not required to admonish as to its discretion to cumulate sentences. Simmons v. State, 457 S.W.2d 281 (Tex.Cr.App.1970).
Still further, it is unnecessary to admonish a defendant who pleads “true” or “not guilty” to the allegations of prior convictions for enhancement of punishment at a bifurcated trial. Preston v. State, 457 S.W.2d 279 (Tex.Cr.App.1970), and Harvey v. State, 611 S.W.2d 108 (Tex.Cr.App.1981), cert. den. 454 U.S. 840, 102 S.Ct. 149, 70 L.Ed.2d 123. See also Crowder v. State, 424 S.W.2d 637 (Tex.Cr.App.1968).
It has also been said that parole eligibility is a collateral consequence of the entry of a guilty plea in a felony case and a defendant is not entitled to be informed of the eligibility for parole by the court. Ex parte Young, 644 S.W.2d 3 (Tex.Cr.App.1983). And it is not necessary to admonish a defendant of his ineligibility to shorten his sentence by accumulating good time credit. Lewis v. State, 630 S.W.2d 809, 811 (Tex.App.-Houston [1st] 1982).
While the majority may intend to limit its holding to situations where a defendant is ineligible for “regular” probation, it is interesting to observe the principal authority cited by the majority.
Harrison v. State, 688 S.W.2d 497 (Tex.Cr.App.1985), was an appeal involving an aggravated robbery conviction. There the Court held that while the trial court erred in admonishing Harrison regarding probation, Harrison failed to show he was misled to his detriment, and the error was thus harmless.
In Harrison this Court observed the general rule that a trial court has no duty to admonish as to the availability of probation and then wrote:
“However, this Court has previously found error where a trial court improperly admonishes as to probation when a defendant is ineligible and it is apparent from the record that the defendant is seeking probation. See Jones v. State, 596 S.W.2d 910 (Tex.Cr.App.1980); Lewis v. State, 630 S.W.2d 809 (Tex.Cr.App.1982); West v. State, 661 S.W.2d 305 (Tex.Cr.App.1983).” (Emphasis in original.)
*784The cases cited in Harrison simply do not support the proposition for which they are cited. In fact, the cited Lewis and West cases are not even opinions of this Court as claimed.
In Jones, a panel opinion of this Court, without any motion for en banc rehearing, the defendant claimed the trial court erred in failing to admonish him that he was ineligible for probation. There the Court wrote: “We do not agree that appellant was ineligible for felony probation, and we do not find error in the trial court’s failure to so admonish him.”
The Court simply disposed of the contention raised by finding the defendant was in fact eligible for probation. There was nothing to suggest that if the defendant had been ineligible for probation reversible error was presented by the failure to admonish. Article 26.13, V.A.C.C.P., was not mentioned nor was there a discussion of any previous admonishment cases. Harrison misinterpreted the panel opinion in Jones.
In Lewis v. State, 630 S.W.2d 809, 811 (Tex.App.-Houston [1st Dist.] 1982), not an opinion of this Court, the defendant claimed the court neglected to admonish him as to his ineligibility for probation upon a finding that he was guilty of aggravated robbery. The Court of Appeals first noted that Article 26.13, supra, requires only admonishment as to the “range of punishment attached to the offense.” The defendant, however, relied upon Jones that he must be admonished as to his ineligibility for probation.
In response the Court of Appeals stated:
“... While the court [in Jones ] did intimate in that opinion that an explanation concerning the defendant’s ineligibility for probation should have been given to the defendant had the court affirmatively found that the crime was committed with a weapon, the court also relied heavily on the fact that defendant had urged probation upon the court. This latter fact indicates that the court is required to warn the defendant concerning probation only if the defendant is hoping to receive, and actively pushes for, a probated sentence.”
It is clear the Court of Appeals misinterpreted Jones as indicated above and read things into Jones that are not there. Further the Court of Appeals stated Jones relied heavily on the fact the defendant urged probation upon the court. Nothing in Jones indicates such reliance. The Jones court in merely stating the contention wrote:
“He contends that the court should have warned him that he was not eligible for probation, after it became apparent that appellant was urging the court to grant him probation.”
No further reference is made to the “urging of probation” in the balance of the Jones opinion. The Court of Appeals gratuitously added to Jones something that was never there. Lewis thus furnishes no support for the proposition so nobly advanced in Harrison.
West v. State, 661 S.W.2d 306 (Tex.App.-Houston [1st Dist.] 1983), not an opinion of this Court as Harrison would lead the reader to believe, involved an aggravated robbery conviction. The defendant rejected, upon counsel’s advice, the State’s offer of a recommendation of 15 years’ imprisonment and entered a guilty plea before the court after filing a motion for probation. The court accepted the plea and subsequently ordered a pre-sentence investigation. At the penalty stage of this bifurcated guilty plea the court denied the motion for probation and assessed punishment at 25 years. At the motion for new trial it was developed that the defendant had been advised by counsel to reject the 15 year plea bargain offer because he was a first offender and the court would be lenient with him, and that he had a good chance for probation, although in fact he was not eligible in view of the aggravated robbery offense. On appeal the Court of Appeals held that counsel’s advice to reject the plea bargain was trial strategy that backfired, but “this unsuccessful strategy combined with appellant’s misunderstanding of his eligibility for some type of probation, we *785find that appellant’s guilty plea was not knowingly and voluntarily entered because it was substantially induced by his counsel’s significantly misleading statements and erroneous legal advice. Cooks v. United States, 461 F.2d 530 (5th Cir.1971 [1972]).”
After reaching that conclusion the Court went further. Noting that Article 26.13, supra, does not expressly require admonishment as to eligibility for probation, the Court believed the “better course” to ensure the voluntariness of the guilty plea is to timely admonish a defendant of his ineligibility for probation, citing Ramirez v. State, 655 S.W.2d 319, 321 (Tex.App.-Corpus Christi 1983, no pet. history).
Thus the West decision by the Court of Appeals does not support the proposition for which it was cited in Harrison. Further, on State’s petition for discretionary review this Court in West reversed the Court of Appeals, finding, after a full discussion of the facts, that the plea was freely and voluntarily entered and that it was deferred adjudication, not “regular” probation that West and his attorney hoped to receive and for which West was eligible. This Court concluded that West was accurately advised. West v. State, 702 S.W.2d 629 (Tex.Cr.App.1985).
It should be clear that neither Harrison, Jones, Lewis nor West stand for the proposition now cited by the majority in the instant case.
As can be seen, Harrison is a house of cards built upon the shifting sands. There is no foundation for the majority’s holding. The attempt to make this an admonishment case is ill-advised at best. We do not need another three-prong test, a two-step analysis or a multi-stage standard in our deci-sional law. There are enough of those now to decorate a Christmas tree.
The majority has fashioned a “remedy” for an evil which offers no cure. It may be a placebo for the reader, but surely the majority cannot believe that it will assuage the situation where the trial judge is ignorant or unaware of the law and he is not otherwise advised. Nor would it save a case where there is an intentional disregard of the law. If the “remedy” had been in place at the time of the instant case, it would not have changed the situation. It can only spawn further legal complexities, further delay and increase appellate case loads involving guilty pleas. It adds nothing to the jurisprudence of this state.
Further, the majority should keep in mind that where a defendant enters a plea of guilty or nolo contendere in a felony case and the trial court determines the plea is voluntarily made, the trial court is not required to instruct the accused on every aspect of the law pertinent to his case; it is not the trial court’s function to act as legal counsel for the defendant. Rose v. State, 465 S.W.2d 147 (Tex.Cr.App.1971). Both prosecutor and defense counsel are officers of the court and should call to the trial court’s attention errors in the admonishment. Lucero v. State, 502 S.W.2d 750 (Tex.Cr.App.1973).
I concur in the result only.
TOM G. DAVIS and McCORMICK, JJ., join in this opinion.. Article 26.13, V.A.C.C.P., in effect at the time of the 1981 conviction read:
“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
"(1) the range of punishment attached to the offense;
“(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendere, and neither the fact that the defendant had entered a plea of guilty or nolo contendere nor any statements made by him at the hearing on the plea of guilty or nolo contendere may be used against the defendant on the issue of guilt or punishment in any subsequent criminal proceeding; and
"(3) the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial.
“(b) No plea of guilty or plea of nolo con-tendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
"(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.
(Acts 1979, 66th Leg., p. 1108, ch. 524, § 1, eff. Sept. 1, 1979; Acts 1979, 66th Leg., p. 1160, ch. 561, § 1, eff. Sept. 1, 1979.)
It is observed that the range of punishment admonishment is contained in § (a)(1), and the inquiry into any plea bargain and the requirement that the court inform the defendant whether he will follow or reject any plea bargain agreement is found in § (a)(2). In the instant case in telling the applicant he would get 10 years’ probation the court was attempting to comply with § (a)(2), not § (a)(1).
. The Court of Appeals wrote:
"... Appellant's situation is highly unusual. It is true that he is not eligible for probation. TEX.CODE CRIM.PROC.ANN. art. 42.12, § 3f(a)(l)(D) (Vernon Supp.1985); Rivas v. State, 627 S.W.2d 494 (Tex.App. — San Antonio 1982, pet. ref'd.) Therefore, the trial court’s orders granting probation are void. State ex rel. Curry v. Gray, 599 S.W.2d 630 (Tex.Crim.App.1980). Under these circumstances, the trial court technically possesses the authority to set aside the void portion of the judgment and enter a proper sentence. See Villarreal v. State, 590 S.W.2d 938 (Tex.Crim.App.1979).
"The only additional and unusual factor in this case is the considerable amount of time that has passed since the original judgment. While we sympathize with appellant’s plight, we have found no authority allowing him to appeal at this time and in this manner. A direct appeal would lie only from the original judgment of August 17, 1981. Thus we find appellant’s notice of appeal to be untimely; this court therefore has no statutory jurisdiction to hear this case. The proper remedy for appellant is a writ of habeas corpus or a motion for an out-of-time appeal.”
Of course, the Court of Appeals was wrong. The trial court's order suspending the imposition of sentence and granting probation was void, and that court had the authority to set aside the void order and proceed as if the void order had never been entered and to impose sentence. When it did in this case and applicant gave notice of appeal, the Court of Appeals clearly had jurisdiction.
. A trial judge should carefully avoid participation or the appearance of participation in a plea discussion or negotiations until such time as an agreement has been reached. It is only after the trial judge has passed on the evidence and the plea that he can allow himself to express his personal offer of assistance to the defendant. Ex parte Shuflin, 528 S.W.2d 610 (Tex.Cr.App.1975); State ex rel. Bryan v. McDonald, 662 S.W.2d 5 (Tex.Cr.App.1983).
. In recent cases this Court has reversed convictions or granted habeas corpus relief when a guilty plea is induced by a direct misrepresentation of defense counsel. Ex parte Griffin, 679 S.W.2d 15 (Tex.Cr.App.1984), or because of such counsel’s inaccurate advice about the consequences of the plea of guilty. Ex parte Kelly, supra; McGuire v. State, 617 S.W.2d 259 (Tex.Cr.App.1981); Ex parte Burns, 601 S.W.2d 370 (Tex.Cr.App.1980).
. Substantial compliance as mentioned in Article 26.13, supra, apparently has no application to admonishment as to the availability of probation by the judicial fiat issued today enlarging the requirements of § (a)(1) of the statute.
. In the second paragraph of footnote # 1 of Judge Clinton’s concurring opinion, he takes note that this Court has stated generally there is no requirement to admonish a defendant as to his right to probation. Then he observes that Wilson and Brown were decided in 1968 and 1972 prior to the 1975 amendment to Article 26.13, V.A.C.C.P., which now includes the necessary admonishment as to “the range of punishment attached to the offense,” and that no cases decided since 1975 were cited.
When enacted in 1965, Article 26.13, supra, provided in part:
"If the defendant pleads guilty, or enters a plea of nolo contendere, he shall be admonished of the consequences; _”
With the exception of the language concerning a plea of "nolo contendere," it was the language used from 1856 in all of the forerunners of Article 26.13. See dissenting opinion in Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974).
In Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (App.1956), this Court wrote:
“It is apparent that the court failed to admonish the appellant as to the consequences of his plea of guilty, that is, the punishment provided by law for the offense charged and the punishment which could be inflicted under such plea."
Alexander has been consistently followed and cited. Williams v. State, 415 S.W.2d 917, 919 *783(Tex.Cr.App.1967); Wilson v. State, 456 S.W.2d 941, 943 (Tex.Cr.App.1970) (concurring opinion); Ex parte Battenfield, 466 S.W.2d 569, 571 (Tex.Cr.App.1971); Ex parte Marshall, 479 S.W.2d 921 (Tex.Cr.App.1972); Wright v. State, 499 S.W.2d 326 (Tex.Cr.App.1973); Reed v. State, 500 S.W.2d 137, 138 (Tex.Cr.App.1973); Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974).
It is clear that required admonishment as to the “consequences” of his plea used prior to the 1975 amendment to Article 26.13 had reference to "the range of punishment provided by law,” Reed, supra, and the Legislature in 1975 wrote into the statute the same meaning used in the prior decisional law.
In the opinion on original submission in Taylor v. State, 591 S.W.2d 826 (Tex.Cr.App.1979), it was written:
"Even prior to 1975 when Article 26.13, supra, was amended to explicitedly provide that a defendant must be admonished as to the range of punishment attached to the offense, this court held that a trial court must admonish a defendant in a felony case of the consequences of his plea, including the punishment provided by law for the offense and the punishment which could be inflicted under his plea.” See also Eubanks v. State, 599 S.W.2d 815 (Tex.Cr.App.1980).
Also noting the consistency between the pre and post 1975 law regarding admonishment as to the range of punishment attached to the offense are Shepherd v. State, 673 S.W.2d 263 (Tex.App.-Houston [1st] 1984), and Stubblefield v. State, 659 S.W.2d 496, 497 (Tex.App.-Ft. Worth 1983), no pet. for review.