concurring.
I concur in the conclusion of the majority that appellate jurisdiction does not lie in *8this case, and that habeas corpus jurisdiction does lie. I also share the concern expressed by the dissent that some may misconstrue the majority opinion as creating an “expansion of our habeas corpus jurisdiction [that] will open a ‘Pandora’s box’ of frivolous claims.” I do not, however, find the majority’s conclusion “that the imposition of conditions of probation that contain unconstitutional infringements of freedom of action constitutes a ‘restraint’ within the scope of habeas corpus relief” creates such a broad-reaching expansion as contended by the dissent. The majority find jurisdiction on appellant’s tenable claims of unconstitutional conditions of probation, and do not open the door for all attacks that may be conceived, even if frivolous or not of constitutional magnitude.
It should be noted that habeas corpus may not be used as a substitute for appeal. Mixon v. State, Tex.Cr.App., 365 S.W.2d 364; Ex parte Eldridge, 154 Tex.Cr.R. 50, 224 S.W.2d 262; Ex parte Loper, 153 Tex. Cr.R. 240, 219 S.W.2d 81. The proper means to challenge the validity of a condition of probation imposed at conviction is by appeal from that conviction. This Court will consider such claims at that time. Morales v. State, Tex.Cr.App., 541 S.W.2d 443; Flores v. State, Tex.Cr.App., 513 S.W.2d 66; Faugh v. State, Tex.Cr.App., 481 S.W.2d 412; Milligan v. State, Tex.Cr. App., 465 S.W.2d 157. Only in special circumstances should habeas corpus be available to challenge the validity of a condition of probation imposed at conviction.
In the case at bar petitioner was convicted and placed on probation on July 7, 1975. The search and seizure condition of his probation (set out in the majority opinion) was imposed at that time. Tamez v. State, Tex. Cr.App., 534 S.W.2d 686, was decided on March 17, 1976, and held a probationary condition such as the one here was unreasonable and unenforceable. Because Tamez was decided after appellant’s probation condition was imposed, he did not have benefit of that holding when he could have raised the issue on appeal. Petitioner should not be faulted for failing to anticipate this Court’s decision in Tamez v. State, supra. Ex parte Taylor, Tex.Cr.App., 484 S.W.2d 748, 752; Ex parte Casarez, Tex.Cr.App., 508 S.W.2d 620, 622. For this reason I concur in the exercise of our habeas corpus jurisdiction in this case on the Tamez issue. Furthermore, with the case before us on this ground I concur in the decision to address the other issue raised by petitioner as well. Once jurisdiction is found, no purpose would be served by declining to decide the validity of the other challenged probation condition, particularly in light of the significance of the issue.
I therefore concur in the exercise of our habeas corpus jurisdiction to hear challenges to conditions of probation under the facts of this case.