OPINION
ON STATE’S MOTION FOR REHEARING
ROBERTS, Judge.As the panel’s opinion noted, this Court has delivered two lines of cases in which there was a long delay between the probation revocation hearing and the decision to revoke probation. The question in each case was whether due process of law1 and due course of the law of the land2 required another hearing to be held before probation was revoked. In one line of cases we held that another hearing was required if the delay was caused by the probation’s being continued.3 In the other line, we held that another hearing was not required if the delay was caused by the hearing's being continued.4 The panel strove dutifully, as panels must, to follow the precedents of the en banc court by deciding “whether the trial judge continued appellant’s probation, or continued the hearing itself on June 26, 1980.”
On rehearing we turn away from this question. Further reflection and the experience of cases such as this one have persuaded us that the distinction between “continuing the probation” and “continuing the hearing” is irrelevant to the question of what process is due when the trial court finally takes away the probationer’s liberty.
We begin by recognizing that the liberty of a probationer is protected by the due process and due course of law provisions of the constitutions. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976). This is because his liberty, although indeterminate, includes many of the core values of unqualified liberty, such as freedom to be with family and *252friends, freedom to form other enduring attachments of normal life, freedom to be gainfully employed, and freedom to function as a responsible and self-reliant person. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).5 In addition, the probationer has relied on at least an implicit promise that probation will be revoked only if he fails to live up to the conditions of probation. Id. And, of course, he faces lengthy incarceration if his probation is revoked. Id. Therefore the termination of probation inflicts a grievous loss on the probationer and often on others. Id. Probation is a valuable liberty that is protected by the Fourteenth Amendment and by Section 19 of the Texas Bill of Rights.
It is apparent that the probationer continues to- have an interest in this liberty when, after a hearing such as the one held on June 26 in this case, the court returns him to probation rather than revoking probation. His liberty interest is not affected by the procedure’s being called “continuance of the hearing” rather than “continuance on probation.” He continues to enjoy the core values of liberty mentioned above; he continues to rely on an at least implicit promise that probation will be revoked only if he breaches a condition; and he continues to face lengthy incarceration. The grievous loss, revocation, has yet to be suffered. Therefore the probationer who has been returned to probation after a hearing, regardless of the procedural label, retains the valuable liberty of probation and the due process protection of the Fourteenth Amendment and Section 19.
This protection includes the fundamental requirement that the probation, recently returned, not be taken away arbitrarily. There must be a determination that the probationer has in fact breached the conditions of probation. Morrissey v. Brewer, 408 U.S. 471, 483-484, 92 S.Ct. 2593, 2601-2602, 33 L.Ed.2d 484 (1972); Wester v. State, 542 S.W.2d 403, 405-406 (Tex.Cr.App.1976). In the context of cases such as this, in which the probationer was returned to probation for three months, there must be a determination that he breached the conditions after he was returned to probation (or that there is newly discovered evidence of a previous violation which was not known at the time of the hearing).6 It would be the epitome of arbitrariness for a court first to conduct a hearing on alleged violations and exercise its discretion to return the probationer to probation (whether by a “continuance of the hearing” or by a “continuance of the probation”), and then decide several months later to exercise its discretion in the opposite fashion by revoking the probation without any determination of a new violation.
The cases which approved the revocation of probation, several months after the probationer was returned to probation, without a determination of a new violation seem to sanction such arbitrariness. Although the violation of due process and due course of law appears clearly, respect for stare decisis causes us to examine these holdings to see if they can be justified. To excuse the need for another hearing after the probationer was returned to probation by “continuing the hearing,” three justifications were given: that the procedure was authorized by statute, that it was a “break” which the probationer wanted, and that it did not involve the consideration of new violations. (The Court recently abandoned the third justification.) None of these justifications can withstand scrutiny.
The statutory justification was advanced in Ex parte Feldman, 593 S.W.2d 720, 721 *253(Tex.Cr.App.1980), and Furrh v. State, 582 S.W.2d 824, 827 (Tex.Cr.App.1979) (dictum). It was based on V.A.C.C.P. Article 42.12, Section 8(a), which provides, “The court may continue the [probation revocation] hearing for good cause shown by either the defendant or the state.” It was held that the statute permitted the trial court to hold an essentially complete hearing and then, by continuing the hearing without a formal decision, to return the probationer to probation for an extended period before deciding to revoke. The first thing to be said about this justification is that, even if it were a correct construction of the statutory provision, it could not justify an unconstitutional procedure. It is well settled that a statute which is contrary to constitutional provisions cannot be the law of the land. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-177, 2 L.Ed. 60 (1803). But this construction of the statute was not correct. The statute, we hold, contemplates a continuance which is necessary to overcome one of the various obstacles that prevent a hearing from beginning on time and proceeding smoothly to the closing of evidence, such as an overcrowded docket, the illness of counsel, the unexpected absence of a witness, and so on. We also hold that it contemplates a short period of time (such as a few days) after the closing of evidence during which a conscientious judge, in good faith, might consider his decision.7 But the statutory provision for a continuance does not contemplate a prolonged period during which the probationer is returned to probation.8 Such an action is not a true continuance; it is a thinly-disguised decision to continue the probation. Ex parte Feldman, 593 S.W.2d 720, 722 (Tex.Cr.App.1980) (Onion, P.J., dissenting). There is no reason to believe that the statutory provision for continuing the hearing was intended to accomplish a disguised continuance of the probation; the statute provides separately that after the hearing the court “may either continue, modify, or revoke the probation.” V.A.C.C.P. Article 42.12, Section 8(a) (emphasis supplied).
The second justification for the continuance of the hearing is the “break” argument which was made in Ex parte Feldman, 593 S.W.2d 720, 722 (Tex.Cr.App.1980):
“A probation violator, if faced with a choice between immediate revocation and imprisonment and the postponement of final action, would in practically all cases choose the delay. He would consider himself to be ‘getting a break.’ ”
Accord, Stanfield v. State, 588 S.W.2d 945, 947 n. 1 (Tex.Cr.App.1979). This argument cannot justify the actions taken in these cases. To begin with, the argument fails, even on its terms; while the probationers undoubtedly want the break of being returned to probation, they just as undoubtedly do not want the “break” of having that probation revoked summarily, which is the issue before us. It is true that the probationers got a break when, after the evidence was closed, the trial court returned them to probation rather than revoking. It is worth remembering that they got a break when they were granted probation to begin with. The point is that their liberty interest in remaining on probation is not any less on account of its coming through an undeserved break. “It is clear at least after Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), that a probationer can no longer be denied due process in reliance on the dictum . . . that probation is an ‘act of grace.’ ” Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 4, 93 S.Ct. 1756, 1760 n. 4, 36 L.Ed.2d 656 (1973). “Getting a *254break,” the Texas version of “act of grace,” is no more a reliable dictum for denial of due process. The Court was at pains to explain in Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972):
“ ‘[T]his Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a “right” or as a “privilege.”’ Graham v. Richardson, 403 U.S. 365, 374 [91 S.Ct. 1848, 1853, 29 L.Ed.2d 534] (1971). Whether any procedural protections are due depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 [71 S.Ct. 624, 646, 95 L.Ed. 817] (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263 [90 S.Ct. 1011, 1018, 25 L.Ed.2d 287] (1970). The question is not merely the ‘weight’ of the individual’s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67 [92 S.Ct. 1983, 32 L.Ed.2d 556] (1972).”
The fact that the probationers got their liberty through a break has no significance in the due process and due course of law considerations.
The third justification which has been made may be called the “hear-no-evil” justification. It approved of a belated revocation without an additional hearing if that action appeared from the record to have been based only on the violations which were proved months previously at the original hearing, and not on any subsequent conduct which may have occurred after the probationer was returned to probation. The trial court had heard no evil, at least not on the record. Stanfield v. State, 588 S.W.2d 945, 947 (Tex.Cr.App.1979); Traylor v. State, 561 S.W.2d 492, 494 (Tex.Cr.App.1978); Sappington v. State, 508 S.W.2d 840, 841 (Tex.Cr.App.1974). This justification apparently was made in recognition of the due process violation that would occur if the trial court did consider reports of such subsequent conduct.9 The Court expressly abandoned this justification (and, apparently, its due process qualms) in Ex parte Feldman, 593 S.W.2d 720, 721 (Tex.Cr.App.1980), when it held that the trial court may continue the hearing, “keeping before it the violations already proven and permitting the careful consideration of mitigating or exacerbating circumstances, including the subsequent conduct of the probationer, before making a final decision whether to revoke.” (Emphasis supplied.)10 This latest holding, because of its plain disregard of the minimum requirements of due process, is even worse than the “hear-no-evil” procedure. But the “hear-no-evil” justification also fails, in its own way, to measure up to the standards of due process and due course of law. As we have explained above, it is the epitome of arbitrariness that a court should hear all the evidence and return a person to the liberty of probation, only to take the liberty away months later for no additional reason (at least none that appears of record). The action is no less arbitrary — indeed, in a sense, it is even more arbitrary — if the record is kept scrupulously clean of any sign that reports of new violations reached the ears of the trial judge. And, no matter how spotless the record, it always has been hard to believe that the *255trial judge really heard no evil — that he just decided, for no apparent reason, to finish the revocation proceeding that he had interrupted a few months previously. The “hear-no-evil” argument, like the other justification, is not sufficient to excuse the denial of another hearing.
Only a few years ago, when trial courts continued probationers on probation and then tried to take away that liberty without a proper determination of a new violation of the conditions of probation, we condemned the practice.
“[Wjhen a revocation proceeding has been had and the defendant continued on probation in the discretion of the court (although there was an adequate basis for revocation demonstrated at the hearing), the continuation cannot subsequently be arbitrarily withdrawn at the whim of the trial court or upon mere fact of an arrest. To hold otherwise would violate due process, due course of the law of the land and fundamental fairness.”
Webster v. State, 542 S.W.2d 403, 406 (Tex.Cr.App.1976) (footnote omitted). Accord, Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979). What we recognize today is that the same constitutional violations occur when probation is so revoked after a probationer was returned to probation during a prolonged “continuance of the hearing.” None of the cases which approved this procedure have justified the distinction as being anything more than a charade. While there is a place for a short, bona fide continuance of the hearing, a continuance cannot become a disguised decision to return the probationer to probation, as it did in this case. To the extent they held otherwise, opinions approving such a procedure are overruled.11
The motion for rehearing is overruled.
.“[N]or shall any State deprive any person of life, liberty, or property without due process of law .... ” U.S. Const.amend. XIV.
. “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Texas Const, art. I, sec. 19.
. Furrh v. State, 582 S.W.2d 824 (Tex.Cr.App.1979); Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979); Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976).
. Ex parte Feldman, 593 S.W.2d 720 (Tex.Cr.App.1980); Stanfield v. State, 588 S.W.2d 945 (Tex.Cr.App.1979); Furrh v. State, 582 S.W.2d 824 (Tex.Cr.App.1979) (dictum); Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978); Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974).
. Although Morrissey v. Brewer involved parole rather than probation, there is no difference relevant to the guaranty of due process between revocation of parole and revocation of probation. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973).
. This determination, of course, must be made at another revocation hearing. Such hearings in Texas provide, and exceed, the minimum requirements of due process. Whisenant v. State, 557 S.W.2d 102 (Tex.Cr.App.1977). See Vincent v. Texas, 449 U.S. 199, 101 S.Ct. 632, 66 L.Ed.2d 391 (1980) (holding unclear) (per curiam) (dismissing appeal which challenged Whisenant).
. But, from arrest to disposition, the probationer who has requested a speedy hearing may not be confined for more than 20 days. Aguilar v. State, 621 S.W.2d 781 (Tex.Cr.App., 1981).
. See Ex parte Feldman, 593 S.W.2d 720 (Tex.Cr.App.1980) (hearing had been “continued,” and probationer returned to probation, for 7V2 months); Stanfield v. State, 588 S.W.2d 945 (Tex.Cr.App.1979) (2 months); Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978) (8 months); Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974) (3 months). Cf. Furrh v. State, 582 S.W.2d 824 (Tex.Cr.App.1979) (probation was continued for 3 months, then revoked without determination of new violation; this Court reversed, but said in dictum that trial court “could have continued the hearing").
. The probationer would be denied the minimum requirements of due process: written notice, disclosure of adverse evidence, opportunity to be heard and to presen*- evidence, right to confiont and cross-examine adverse witnesses, and (in some cases) the assistance of counsel. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973). There would also be a denial of more elaborate rights provided by Texas law. See generally Whisenant v. State, 557 S.W.2d 102, 104-105 (Tex.Cr.App.1977).
. It may be noted that all three judges who advanced the “hear-no-evil” justification have abandoned it, too. The author of Stanfield v. State, sup'v, also wrote the passage quoted above from Ex parte Feldman. The author of Traylor v. State, supra, has stated forthrightly, “I would not hesitate to overrule Traylor if it can be used to justify the procedure here utilized.” Ex parte Feldman, 593 S.W.2d 720, 722 (Tex.Cr.App.1980) (Onion, P.J., dissenting). The author of Sappington v. State, supra, is the author of this opinion.
. These include the cases listed in nn. 4 and 8, supra.