concurring.
As author of the panel opinion I and my brothers did indeed undertake to determine on which side of the unhandy dichotomy created by the Court over the years the facts of this matter fell. To condition a decision as to the liberty of a probationer in this fashion is awkward at best, but downright injudicious at worst. Trial judges are entitled to a brighter line of procedural guidance, and I concur with what the Court provides today.
The opinion of the Court on State’s motion for rehearing is assailed by the dissenting opinion with a warning, surely not prediction, of an adverse reaction on the part of the trial bench — “a reluctance to grant probation, a reluctance to allow a continuance of probation revocation hearings, and a reluctance to give doubtful probationers a second chance.” I would think the first “reluctance” does not follow at all, and nothing in the opinion of the Court inhibits a trial judge from granting a bona fide continuance of the hearing, in the language of the statute, “for good cause shown by either the defendant or the state,” 1 Article 42.12, § 8(a), V.A.C.C.P. But, a hazard to a “second chance” for “doubtful probationers” is evident should the reaction suggested by the dissent become in vogue — provided there is no other rational and sympathetic way to treat the “doubtful probationers.” I believe there is though, and turn now to develop still another alternative that is not examined precisely in either opinion.
Conditions of probation initially imposed, however inscrutable,2 are not immutable during the period of probation. Section 6 of Article 42.12, supra, authorizes the court having jurisdiction “at any time” during the term to “alter or modify” conditions of probation,3 and § 8(a) contemplates that af*256ter a revocation hearing the court “may either continue, modify, or revoke the probation.” Thus, while a given condition usually will, it need not run the entire period of probation; nor is the court precluded from instituting an additional or new one as circumstances may require. The terms and conditions enumerated in § 6 are what probation “may include, but shall not be limited to.”4
Accordingly, it seems to me that a court is well equipped to provide a “second chance” to the “doubtful probationer.” The judge of the court may tailor a new condition or modify an existing one to fit whatever problem is being contemporaneously manifested by the probationer5 and, along with that amount of oral “woodshedding” deemed appropriate, reduce it to writing. Then, thereafter if and when a violation of that condition (or any other one, of course) is alleged and shown by a preponderance of the evidence, all will know that the probationer muffed his second chance.
In the instant case the record demonstrates that the court below was willing to extend a second chance and expected to see improvements in appellant’s compliance with the conditions of probation, including payment of at least “half of this five hundred sixty something dollars.” We cannot learn from the record in what respect appellant failed those great expectations; still had measures for correcting one or more of the problems concerning the judge been reduced to writing, filed among the papers and a copy furnished appellant, and our record revealed that improved compliance had not been achieved within the sixty days allowed, I am satisfied we would be addressing a much different question in this case.
A simple written modification may seem to exalt form over substance. In reality it operates against that abuse of discretion which is undetectable from a record of a summary proceeding, by demonstrating there was none.
I join in the opinion and judgment of the Court, with this effort to suggest an alternative to a judicial slamming shut the door to a second chance.
McCORMICK, J., joins. TEAGUE, Judge,concurring.
On September 17, 1979, after finding appellant guilty of the third degree felony offense of theft over $200, the trial court assessed appellant’s punishment at two years’ confinement in the penitentiary and also assessed a $500 fine, but ordered the imposition of the two years’ confinement suspended. Appellant was then placed on adult probation. See Art. 42.12, V.A.C.C.P. Other than imposing the special condition of probation that appellant would remain in Taylor County the trial court ordered that appellant would comply during his term of probation with the usual rules and conditions of probation. See Art. 42.12, Sec. 6, supra.
Subsequently, on May 14, 1980, the State filed a motion to revoke appellant’s probation, alleging therein that appellant violated such “technical” conditions of his probation as failure to report; failure to work; failure to report change of residence and *257place of employment; and failure to pay the above fine.1
On June 26, 1980, the appellant appeared in the trial court for a hearing on the State’s motion to revoke his probation, and thereafter entered into a stipulation of evidence, which stipulation of evidence constitutes an admission by appellant that all of the allegations of the State’s motion to revoke were true.2 After hearing the evidence on the State’s motion to revoke, and engaging in a colloquy with the appellant, the trial court then continued the hearing until September 26,1980. On that date, the trial court, without hearing any evidence, taking any testimony or making any findings of fact, summarily entered an order revoking appellant’s probation, and imposed the previously suspended two year sentence.
At the June 26, 1980, hearing, appellant testified that his failure to comply with the above conditions of probation resulted from a variety of circumstances: “I couldn’t hold or keep a job. I couldn’t find a job in Abilene. I didn’t want to worry anybody. I figured I could work it out myself, eventually.” His real problem with failing to comply with the conditions of probation is probably best expressed by the following question asked by the prosecuting attorney, and the answer appellant gave:
Q: Would it be a fair statement to say that you just stuck your head in the sand and sort of hoped the problem would go away?
A: Yes, sir.
Thereafter, the trial court heard appellant’s plea for a “second chance,” as well as hearing statements from appellant’s relatives as to what assistance and aid they would render appellant if the trial court gave appellant a “second chance.” The trial judge then stated:
I am going to reinstate you on probation; that is, for the time being. I am going to continue this hearing to a specific date, on September 26. That’s sixty days away.
THE DEFENDANT: Yes, sir.
THE COURT: And then I am going to determine whether or not you are serious about this thing.
THE DEFENDANT: Yes, sir.
THE COURT: And I am telling you right now that if you are not serious about it, this probation is going to be revoked and you are going to the penitentiary.
THE DEFENDANT: Yes, sir.
THE COURT: Now, you have got some help here in getting this job. You better get out there and get to work. It may be backbreaking, but it won’t hurt you. And I expect you to obey all of the other requirements of this order. And when sixty days is up, I want at least half of this five hundred sixty something dollars to be paid.
THE DEFENDANT: Yes, sir.
THE COURT: You make a note of that, Ms. Faulkner, [the probation officer].
MS. FAULKNER: Yes, sir.
THE COURT: Now, then, when you were placed on probation back last September, I asked you if you understood the requirements, and you said you did.
THE DEFENDANT: Yes, sir.
THE COURT: I asked you if you would comply with them and you said you would.
THE DEFENDANT: Yes, sir.
*258THE COURT: And you haven’t. Now, I am going to give you sixty days just to straighten up, and if you don’t, you’re finished.
THE DEFENDANT: Yes, sir. That’s fair enough, sir.
THE COURT: And you comply — Whether you are working or what you are doing, the least you can do is report like it says to report.3
THE DEFENDANT: Yes, sir. (Emphasis added.)
Ninety days came and went, and dutifully, on September 26, 1980, appellant reappeared before the trial court. Without any evidence, statements or testimony from witnesses, nor anything for that matter, as reflected by the “blank” page in the record on appeal, the trial court summarily caused the two year punishment previously suspended on September 17, 1979, to be activated when it sentenced appellant to the penitentiary for a term of two years. On October 10, 1980, the appellant was formally sentenced to serve the two year sentence, after which he gave notice of appeal to this Court.
Though I find under the. circumstances that the trial court’s action in not revoking appellant’s probation on June 26, 1980, was commendable, nevertheless, I have also found that the trial court neither afforded nor accorded appellant due process and due course of law, as provided by the provisions of the State and Federal Constitutions, when it revoked appellant’s probation on September 26, 1980. See Art. I, Sec. 19, Texas Constitution; Amendment 14, United States Constitution.
Though I appreciate and understand the many eloquent and well stated remarks that Judges Roberts and Clinton make in their respective opinions in this cause, I find that the end result of Judge Roberts’ holding, in which Judge Clinton joined, is really no result, and will permit and allow a continued perpetuation of that which he condemns — the continued hearing of a State’s motion to revoke a defendant’s probation. Furthermore, I find that many of the statements that Judge Roberts makes in his opinion are unnecessary to a proper disposition of this cause.
In Ex parte Feldman, 593 S.W.2d 720 (Tex.Cr.App.1980), this Court, speaking through Judge Leon Douglas, formerly a member of this Court, held:
Upon a finding of “true” to any allegation of violation of probation, the court has three choices. It can, in its sole discretion, immediately revoke probation. Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972). It can choose instead to continue probation, but if it does, then no further action may be taken based upon the violations already before the court. Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979); Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976). Or, it can continue the hearing, Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978), 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.
The dissent considers use of the third course a violation of petitioner’s due process rights, because the court retains the power to revoke solely in its discretion, rather than requiring a formal evidentia-ry hearing upon new violations of conditions of probation.
A probation violator, if faced with a choice between immediate revocation and *259imprisonment and the postponement of final action, would in practically all cases choose the delay. He would consider himself to be “getting a break.”
The instant case bears this out. The record is devoid of any indication that Feldman objected to the passing of the hearing. Nor is any motion on record seeking a speedy re-convening of the proceedings. It appears that Feldman, like the court, believed a continuance before the exercise of the court’s discretion in deciding whether to revoke probation to be in his own best interests. We agree.
The relief sought is denied. Id. at 721, 722.
Presiding Judge Onion, joined by Judges Roberts, Phillips (formerly a member of this Court), and Clinton, wrote a strong dissenting opinion in Feldman, disagreeing with the majority of the Court that the law allowed for a “continued hearing on the State’s motion to revoke.”
If I comprehend what the dissenting opinion in Feldman, Id., stated, and reduce the matter to its bottom line, it is that no reasonable trial judge would ever sentence a probationer, who has allegedly violated his probation, to the penitentiary without first according and affording the probationer due process and due course of law, as guaranteed by both the Texas and United States Constitutions. The dissenters also rejected the notion that continuing the hearing on the State’s motion to revoke probation until another day was in accord with due process and due course of law, where absolutely nothing was presented on the record concerning the “second hearing.” Thus, the dissenters did not believe that a defendant probationer could summarily be sentenced to the penitentiary for allegedly violating his probation.
I totally agree with the conclusions expressed in the dissenting opinion by Presiding Judge Onion in Feldman, Id. However, is not a proper disposition of this cause to simply hold that that part of Feldman, which held:
Upon a finding of “true” to any allegation of violation of probation, the court has three choices. It can, in its sole discretion, immediately revoke probation. Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972). It can choose instead to continue probation, but if it does, then no further action may be taken based upon the violations already before the court. Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979); Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976).... Id. at 721.
is sound in law, and overrule everything to the contrary that this Court has stated in the past, including the remainder of Feld-man’s holding? I think so.
I find, as did Judges Roberts and Clinton, that the avenues a trial court may take, after it has been shown that a probationer violated his probation, are few. In fact, see Art. 42.12, Sec. 8(a), V.A.C.C.P., and as pointed out by Judge Roberts, a trial court really has only two options: (1) revoke the probation or (2) continue the probationer on probation. The part of Feldman, supra, which allows for a continued hearing on the State’s motion to revoke, and which I also vote to overrule, is, as Judge Roberts’ states: “a thinly-disguised decision to continue the probation.” But, where I part company with my Brother on the Bench, Roberts, J., is when he states: “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,” and “it [continuing the hearing] contemplates a short period of time (such as a few days) after the closing of evidence during which a conscientous judge, in good faith, might consider his decision.” I take issue with the statements, “a short, bona fide continuance of the hearing,” and “a short period of time (such as a few days),” 4 for I *260am sure that the trial judge in this cause could make a sound argument that his continuing the hearing was for a short period of time, and was based on bona fide reasons, as well as making the argument that 90 days was only for a “few days.” I believe that Judge Roberts’ attempt to solve the problem is no solution at all. I must therefore return to September 26, 1980, when the trial court in this cause decided that the probationer did in fact violate his conditions of probation, and sentenced the appellant to the penitentiary.
I find that, as did Judge Clinton when he pointed out in his opinion: “We have no idea what appellant’s subsequent conduct was [from June 26, 1980 until September 26, 1980] nor whether the trial judge was even apprised of it [the appellant’s conduct during that period of time].”
In a short but rather illuminating and thought provoking decision, the Supreme Court of the United States in Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960),5 speaking unanimously through then Justice Black, stated:
Thus, we find no evidence whatever in the record to support these convictions. Just as ‘Conviction upon a charge not made would be sheer denial of due process,’ so it is a violation of due process to convict and punish a man without evidence of his guilt. (362 U.S. 206, 80 S.Ct. 629, 4 L.Ed.2d 659.)
Just as a defendant in a regular criminal proceeding is not accorded and afforded due process and due course of law in a regular criminal proceeding when no evidence is presented by the prosecuting attorney, Thompson v. Louisville, Id., I would hold that a defendant in a revocation of probation proceeding may not be sentenced to the penitentiary without the record showing what evidence triggered the sentencing,5A We should indeed wipe from the books the continued hearing of the State’s motion to revoke probation principle of law that has come into vogue in our trial courts as a result of this Court’s decision of Feldman, supra, and bury that principle of law once and for all, for “second chance” and “getting a break” and due process or due course of law are not legally synonymous. I find that the trial court in this cause, like the then majority of this Court in Feldman, supra, failed to grasp that “second chance” and “getting a break” do not necessarily equal due process and due course of law. In failing to make the distinction the trial court in this cause has denied the appellant due process and due course of law.
Let us now return to June 26, 1980, after the hearing on the State’s motion to revoke appellant’s probation, and after it was shown that the appellant had in fact violated the alleged conditions of his probation. What could the trial court have legally done on June 26, 1980? The answer is simple. He could have: (1) revoked the appellant’s probation and sentenced the appellant to the penitentiary, or (2) continued the appellant on probation. As seen by the facts of this cause, the first avenue was not then palatable to the trial judge, and probably acting in accordance with Feldman did not continue the appellant’s probation, opting instead for continuing the hearing on the State’s motion to revoke appellant’s probation. That, of course, was the wrong decision for him to have made; especially without the record reflecting why he did what he did on September 26, 1980.
I disagree with the statements Judge Clinton makes regarding his proposed third *261alternative, for I find that his proposal is nothing more than either (1) requiring the probationer to adhere to the same identical conditions he had prior to the hearing on the State’s motion to revoke, or (2) is nothing more than a modification of the original conditions. See Art. 42.12, Sec. 6, supra.
Nevertheless, I do find a third avenue, which does not concern a “meditative” or “reflective” type continuance, see footnote 4, supra, nor a modification of the defendant’s probation. The third avenue or alternative that I propose would come into play where the trial court has conducted a hearing on the State’s motion to revoke a defendant’s probation, but the trial court after the hearing finds that he is in a “50-50” position, i.e., 50% of the trial judge’s intellect tells him to sentence the defendant to the penitentiary but the remaining 50% óf the trial judge’s intellect tells him that if he had additional evidence or information he would then grant the defendant probationer a “second chance.” The third avenue would be available only where the trial court believes that further investigation is warranted before deciding whether or not to revoke. But under the third avenue the probation could not be ordered revoked because of what the trial court had heard at the hearing on the State’s motion to revoke probation.6
Again, I find that after a hearing on a State’s motion to revoke the defendant’s probation, and the evidence is closed, the trial judge can only do one of two things: (1) revoke the probation or (2) continue the defendant on probation. He cannot continue the hearing solely for the purpose of making a belated decision.7
I would therefore hold that the following should be the “true” rule of law:
Upon a finding of “true” to any allegation of violation of probation, the court has four choices. It can, in its sole discretion, immediately revoke probation. Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972). It can choose instead to continue probation, but if it does, then no further action may be taken based upon the violations already before the court. Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979); Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976)....
It can, before hearing any evidence on the State’s motion to revoke, reset the cause until a future date, if done by argument of the parties.
It. can, after hearing the evidence on the State’s motion to revoke, continue the hearing for the sole purpose of obtaining new evidence or information that will be the determining factor whether or not the defendant’s probation should be revoked. But, if it takes this course of action, then the final decision of whether or not to revoke must be made on the basis of the new evidence or information, and not on what may have been adduced at the hearing on the State’s motion to revoke the probation.
As to my Brother Odom’s concerns, as expressed in his dissenting opinion, that the overruling of that part of Feldman, which part I believe needs to be overruled, will “divest the trial judge of his discretionary authority under the statute to ‘continue, modify or revoke the probation,’ ” and “the second chance [door] afforded by that discretion will be shut out as well,” I disagree with his conclusions. I cannot envision that *262the above “true” rule of law would cause trial courts of this State to discontinue granting probations, nor will it cause trial courts to cease giving probationers “second chances.” In summary, all the above means is that if a trial judge has found that a probationer has violated his probation, the trial judge will then be confronted with what avenue to take, i.e., (1) send the probationer to the penitentiary, or (2) continue the probationer on probation, thus granting to the probationer that “second chance.”8
All avenues easily rest within the trial court’s discretion. But, let us look at the “second chance” avenue, i.e., the continuing of the probation. What are its consequences? It should be obvious to anyone that the probationer is still under the same conditions of probation originally imposed, or possibly, since the hearing, modified conditions of probation. If the probationer later breaches his “second chance” contract with the trial court, after he is continued on probation, all that the trial court must do is administratively cause a motion to revoke the probation to be filed, cause a warrant of arrest to issue, and thereafter hold a hearing to determine if the probationer breached his second contract. And, after the hearing, if it is found that the probationer did in fact breach his “second contract” the trial court may then, once again, invoke any of the above avenues available to him. I recognize that this may work a slight hardship on some trial courts, but to afford a probationer due process and due course of law, as we must, see, E.g., Whisenant v. State, 557 S.W.2d 102 (Tex.Cr.App.1977), “slight hardships” are and should be overlooked in our system of constitutional criminal law. I believe that if a trial court is a “second chance” court, the above will not unduly interfere with the court’s regular business. If the trial court is not a “second chance” court, then the above will not have any effect whatsoever. Even those trial courts which were characterized and labeled “a no second chance court” were not affected by Feldman. If a trial court falls within the middle ground area, then I believe that those trial courts, when they are concerned enough with a particular probationer, who may be characterized as a “technical violat- or,” or even a “non-technical violator” for that matter, will not seriously be affected by the slight hardships imposed. In conclusion, I cannot foresee that the above “true” rule of law will substantially alter how our trial courts are now operating, but I do believe that with the above adhered to no probationer will ever be sentenced to the penitentiary without having first been accorded due process and due course of law, to which I believe all judges subscribe when they are sworn into office. I further believe that they thereafter attempt to carry out this subscription in their day to day conduct of the court’s regular business.9
I, therefore, concur only in the result of the opinion prepared by Judge Roberts.
. All emphasis is mine throughout unless otherwise indicated.
. Among others:
“b. Avoid injurious or vicious habits;
c. Avoid persons or places of disreputable or harmful character;
‡ * Sf« * S(S s(!
g. Remain within a specified place;
.Only alluding to the authority of the probating court, I do not intimate any views as to proper process oi procedure for an “any time” *256alteration or modification of conditions of probation.
. Noteworthy in this connection is that the restrictive provision separately set forth at the end of § 3a, id. — “If probation is granted by the jury the court may impose only those conditions which are set forth in Section 6 hereof.” —was deleted effective September 1, 1981, by Acts 1981, 67th Leg., ch. 639, p. 2466, § 2. So no longer necessary is a resort to the notion of “fleshing out” prescribed terms and conditions, as in, e.g., Flores v. State, 513 S.W.2d 66, 69 (Tex.Cr.App.1974).
. Decisions of the Court acknowledge “wide discretion in selecting conditions of probation,” limited generally by a “reasonable relationship to the treatment of the accused and the protection of the public,” Hernandez v. State, 556 S.W.2d 337, 342-343 (Tex.Cr.App.1977), determined upon a hearing for that purpose. See Warr v. State, 591 S.W.2d 832, 834-835 (Tex.Cr.App.1979).
. In the vernacular of some practicing defense attorneys, prosecuting attorneys, and trial judges, these conditions are usually referred to as “technical” conditions of probation, characterizing them as such in order to distinguish them from mor serious conditions of probation, such as “violate no law.” It is recognized, nevertheless, among those members of the Bench and Bar who use the vernacular, “technical conditions,” that any violation of probation may cause a trial court to revoke a defendant’s probation.
. Appellant also entered a plea of true to the State’s motion to revoke probation. See Detrich v. State, 545 S.W.2d 835, 837 (Tex.Cr.App.1977). Such a plea, without more, would have been sufficient in itself to sustain an order revoking the appellant’s probation. See, Cole v. State, 578 S.W.2d 127, 128 (Tex.Cr.App.1979); Clapper v. State, 562 S.W.2d 250 (Tex.Cr.App.1978).
. One could infer from all of the above that the trial court conditioned his decision on whether or not he would revoke appellant’s probation on this last statement. Alas, the record does not even reflect whether or not the appellant reported to his probation officer between June 26, 1980, and September 26, 1980. Also, the record on appeal is totally silent as to what conditions of probation appellant complied with after June 26, 1980, or, for that matter, what conditions of probation he failed to comply with after June 26, 1980.
Furthermore, though the trial judge stated the matter was to be continued for sixty days, it is apparent from the docket sheet that he meant to use the word “ninety” rather than the word “sixty.”
. Clearly, in the context in which the word “continue” is used in Art. 42.12, Sec. 8(a), supra, the word “continue” has the same meaning that the word has been given when this Court has construed and interpreted the provisions of Chapter 29 of the Code of Criminal Procedure. I do not find any provision in our law which allows for “meditative” or “reflective” continuances.
. For years Sam Thompson’s decision lay virtually dormant, for though it was occasionally cited it was never really recognized by the appellate courts of this nation, which probably includes the court which handed it down. However, in recent times, Sam Thompson’s case is being more and more recognized, and even cited as authority to support a particular decision of an appellate court, even by the court which caused its birth. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
. This statement, of course, is limited to a situation as at bar. I find in this cause that the appellant was not sentenced to the penitentiary because of the hearing on the State’s motion to revoke, but was sentenced to the penitentiary for reasons not stated in the record on appeal.
. In this context, I summarize what I mean: The trial court states: “After hearing the evidence on the State’s motion to revoke, I find that there is sufficient evidence to order the defendant’s probation revoked. However, I am going to order a pre-sentence investigation report and if it comes back unfavorable, then I am going to revoke the appellant’s probation. If it comes back favorable, then I am going to continue the probation.” The trial court, in that instance, would be prohibited from later saying: “Having reviewed the pre-sentence investigation report and finding that it is favorable to the defendant, nevertheless, I am revoking the defendant’s probation because of the previous hearing.” In short, there can be no fallback to the hearing on the State’s motion to revoke, using something from the hearing as a reason to revoke the defendant’s probation.
. Though not strictly a fourth alternative, nevertheless, if all of the parties, including the trial judge, were in agreement, the cause could be reset prior to the hearing, until a future date.
. As previously noted, I find that there are two other avenues: (3) continuing the hearing until a later date for the sole purpose of obtaining new evidence or information, provided that this is done by agreement of the parties, and (4) not holding a hearing at that time and resetting the hearing until a future date, provided this is also done by agreement of the parties. Of course, if the trial judge opts for the third alternative, his ultimate decision on whether or not to revoke the defendant’s probation is limited to what the new evidence or information reveals, and not on what he heard at the hearing on the State’s motion to revoke.
. I have concluded upon further reflection that the above “true” rule would exclude only two types of trial judges: (1) those who do not believe in a “second chance” and (2) those who could be characterized as otiose trial judges. As I do not know of a single trial judge in this State who would ever acknowledge being otiose, the above will actually exclude only “no second chance” trial courts. But then, the “second chance” rule enacted by this Court in the past was never meant to apply to those trial courts anyway. Furthermore, if there is a trial court who fits the label of being an otiose trial court, then he can always invoke the fourth avenue I have set forth above.