OPINION ON MOTION FOR REHEARING
The State’s motion for rehearing includes an assertion that the State was not required to prove that the non-payment of fees by appellant during probation was intentional.
Much of the State’s argument focuses on V.A.C.C.P. Art. 42.12, sec. 8.(c), enacted in 1977. The effect of sec. 8.(c) was to impose upon a probationer the burden to prove that he did not have the financial ability to make the required payments.
By seeming inadvertence, the 1977 amendment enacted two sections numbered as “8.(c)”, each classifying a probationer’s inability to pay as an affirmative defense. The only apparent difference between the two sections was that the first sec. 8.(c) printed in the amendment stated that it applied to situations in which non-payment of fees was the solo ground for seeking revocation of probation.
The second sec. 8.(c) printed in the amendment applied to situations in which non-payment of fees was not the only ground upon which revocation was sought.
Both of the “8.(c)” sections were in force when the State sought to revoke appellant’s probation. Subsequently, the Legislature addressed the matter of two “8.(c)” sections by repealing the second one in 1981. While the two sections did co-exist, however, they were compatible and presented no conflict. They simply made “inability to pay” an affirmative defense which a probationer had to prove by a preponderance of the evidence. Jones v. State, 589 S.W.2d 419. (Tex. Cr. App. 1979).
Before the 1977 creation of two “8.(c)” sections, however, the Court of Criminal Appeals held that in order to revoke probation for non-payment of fees, the State was required to prove that the probationer (1) had the ability to pay and (2) the failure to pay was intentional. Jones, supra.
Before 1977, these two requirements were not imposed by statute, but were imposed by the Courts on a consistent basis. Whitehead v. State, 556 S.W.2d 802 (Tex. Cr. App. 1977); Curtis v. State, 548 S.W.2d 57 (Tex. Cr. App. 1977); Fletcher v. State, 547 S.W.2d 634 (Tex. Cr. App. 1977); Herrington v. State, 534 S.W.2d 331 (Tex. Cr. App. 1976).
*130Although as noted in Jones, the Legislature has altered one requirement we have found neither statutory nor case law which rescinds either of the two requirements.
The two “8.(c)” sections enacted in 1977 addressed only the element of “ability to pay”. The statutory amendments relieved the state of the burden of proving that a probationer had such ability. The burden was shifted to a probationer, requiring him to raise and prove his inability to pay.
The 1977 amendments, however, did not even address the long standing requirement that the State must prove that a probationer’s failure to pay fees was intentional. We conclude that requirement still exists.
In its motion for rehearing, the State relies upon Jones, supra, and Champion v. State, 590 S.W.2d 495 (Tex. Cr. App. 1979) as authority that it is not necessary to prove intentional failure to pay. However, in neither of those opinions is it clear that the State did not prove intentional non-payment, and neither opinion holds that such proof is no longer required.
In the case at bar, the State offered no evidence that appellant intentionally failed to pay two of the seventeen monthly fees. The ability or inability to pay was never an issue in this case.
The State also argues on motion for rehearing that the trial court was entitled to disregard appellant’s testimony as to the circumstances upon which he wrote a $30.00 check on his mother’s bank account. We agree.
Aside from appellant’s testimony, however, the evidence is undisputed that (1) he had cashed two previous checks on his mother’s account with no objection from her and (2) she had never instructed him not to repeat that conduct. We conclude that to infer an intent to defraud or harm the mother under these circumstances is an abuse of discretion. There was no further evidence as to intent.
The motion for rehearing is overruled.