(dissenting on Appellant’s Motion for Rehearing).
On original submission, this court was presented with what was apparently a case of first impression. Are an indigent probationer and his appointed counsel entitled to a ten-day preparation period as provided by Article 26.04(b), Vernon’s Ann.C.C.P., so that failure to waive the same in writing will constitute error on direct appeal from an order revoking probation ?
Article 42.12, § 3b, Vernon’s Ann.C.C.P., provides in part as follows:
“. . . If such a defendant [in a proceeding to revoke probation] has no counsel, it shall be the duty of the court to inform him of his right to show cause why his probation should not be revoked; and if such a defendant requests such right, the court shall appoint counsel in accordance with Articles 26.04 and 26.05 of this Code to prepare and present the same; and in all other respects the procedure set forth in said Sec. 8 of this Article shall be followed.”
Article 26.04, Vernon’s Ann.C.C.P., in its entirety provides:
“(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend *205him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.
“(b) The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”
Article 26.05, Vernon’s Ann.C.C.P., relates to the compensation of counsel appointed to defend.
The right to counsel at revocation hearings can no longer be questioned. If the probationer is indigent and has not waived the right, counsel must be appointed. Article 42.12, supra; Ex parte Williams, 414 S.W.2d 472 (Tex.Cr.App.1967); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, which decision was to apply retroactively. McConnell v. Rhay (Stiltner v. Rhay), 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2. See also Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.1968); Eiland v. State, 437 S.W.2d 551 (Tex.Cr.App.1969); Ex parte Fletcher, 442 S.W.2d 705 (Tex.Cr.App. 1969); Ex parte Fuller, 435 S.W.2d 515 (Tex.Cr.App. 1969).
And the Legislature has provided in the Adult Probation Law as quoted above that such appointment be “in accordance with Articles 26.04 and 26.05 of this Code .” In other words, counsel in probation revocation hearings is to be appointed and compensated as provided in such statutes. Does this mean that only a part or all of Article 26.04, supra, is to be applicable to revocation hearings ?
It is well established that the requirements of Article 26.04(b), supra, have been held mandatory and a failure to comply will call for reversal on direct appeal. Young v. State, 448 S.W.2d 484 (Tex.Cr.App. 1970); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App. 1968); Farmer v. State, 419 S.W.2d 382 (Tex.Cr.App. 1967); Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App. 1964); Ex parte Gudel, 368 S.W.2d 775 (Tex.Cr.App. 1963). It has also been held that where no request for additional time is made and no injury or harm is shown, the failure to sign such waiver of the statutory preparation period will not entitle an accused to relief by habeas coupus or other post conviction or collateral attack. Ex parte Meadows, 418 S.W.2d 666 (Tex.Cr.App. 1967), overruling a number of cases to the contrary.
In the instant case, appellant filed a motion alleging he was indigent and requested counsel be appointed in accordance with Article 42.12, § 3b, supra, and Article 26.-04, supra. Counsel was appointed on the same date and eight days later the probation revocation hearing was conducted. No written waiver of the ten-day preparation period is found in the record and the appellant raises on direct appeal from the revocation order the fact that the provisions of Article 26.04(b) were not complied with.
On original submission in finding no error this court cited Gist v. State 160 Tex. Cr.R. 169, 267 S.W.2d 835 (1954), holding there was no abuse of discretion in conducting a revocation hearing five days after the motion was filed. Gist was decided under the provisions of Article 781b, Vernon’s Ann.C.C.P., (1925), long prior to any statutory of constitutional requirement of counsel at probation revocation hearings and prior to the legislative determination that counsel be appointed in accordance with Article 26.04, supra.
The opinion on original submission also relies upon footnote #2 of this writer’s opinion in Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App. 1970), indicating that a written waiver of the ten-days preparation period was not required in revocation hearings although it was a safer practice. The question of the waiver of the ten-days preparation period was not involved in the Campbell decision. Such footnote was not at all essential to the decision there reached and represented only an attempt to describe the practice that is generally fol*206lowed in this state. Upon further reflection and study, I conclude that I was in error in using the phrase “although it is not required . . . .” The statutes here involved were not being construed at the time.
The opinion on original submission also relies upon the holdings of this court that probation revocation hearings are not trials in the constitutional sense. These holdings for too long have been used like a Mother Hubbard to cover all sorts of deficiencies and inequities in our revocation procedure. If there is no other answer to the contention raised on appeal, then these holdings are cited.
On rehearing, the majority obviously recognizes that the authorities relied upon do not support the conclusion reached and reaches out seeking firmer ground on which to stand.
In doing so, the court for the first time since 1947, and the enactment of the earliest Texas probation statute (former Article 781b, Vernon’s Ann.C.C.P.), holds that a probation revocation hearing is not an adversarial proceeding, a civil action or criminal prosecution. Hood v. State, 458 S.W.2d 662 (Tex.Cr.App. 1970), is cited in support of such proposition, but Hood merely held such proceedings are not ,a “trial” in the constitutional sense. Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963), also cited dealt with a federal statute and with the question of revocation of parole by a board not the revocation of probation by a court as is here involved. The other federal authorities cited for the new proposition that revocation hearings are administrative in nature are also parole not probation cases.
It is indeed regrettable that today’s holding flies into the teeth of the holding of the Supreme Court of Texas that revocation of probation proceedings are a “criminal prosecution” within the meaning of the state constitution. Fariss v. Tipps, 463 S.W.2d 176 (Tex. 1971). And, the holding is also in conflict with our earlier decision in Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App. 1970), that revocation hearings are criminal proceedings where substantial rights of an accused may be affected and “[which] cannot be isolated from the context of the criminal process.”
A conflict between the two courts of last resort is totally unnecessary to the proper disposition of this cause. The label to be placed upon such hearings is wholly immaterial to the issue presented.
Even if revocation proceedings were equated with trials in the constitutional sense, would the constitution, either state or federal, require the waiver of the ten day preparation period? I think not. The requirement is a creature of the statutes which must be construed to determine the legislative intent.
It matters not as to the question presented whether the proceedings are labeled ad-minstrative hearings or something else or whether a real distinction is made between such proceedings and a trial in the constitutional sense, for the Legislature has seen fit to proscribe in such proceedings “. . . . the court shall appoint counsel in accordance with Articles 26.04 and 26.05 of this Code . . . and in all respects the procedure set forth in Sec. 8 of this Article shall be followed.”
The Legislature having so spoken, I find no way to apply Article 26.04(a) and Article 26.05, supra, to revocation proceedings and to determine that Article 26.04(b), supra, has no application unless harm has been shown. To find that such is a common sense construction arising from the plain meaning of the statute is difficult for me to accept. Perhaps Mark Twain’s comment, “The more you explain it, the more I don’t understand it,” is here appropriate. See Davis v. State, 474 S.W.2d 466, 470 at f.n. #1 (Tex.Cr.App. 1972) (dissenting opinion).
I can find no basis for substituting the personal notions of the judges of this court after the Legislature has prescribed the *207procedure to be followed. The Legislature was obviously aware that revocation proceedings involved substantive rights and that counsel must have adequate time to prepare.
I was in error in agreeing to the affirmance of this cause on original submission. For the reasons stated I dissent to the overruling of the appellant’s motion for re-hearing.