dissenting.
This Court does not have jurisdiction to strike a condition of probation where there has been no appeal from the judgment of the original trial and where there has been no motion to revoke probation. After the time for appeal had expired, Basaldua asked the trial judge to delete a condition of probation, and he refused. From the refusal we have this purported appeal.
We do not have jurisdiction. Questions of jurisdiction are fundamentally questions of power. A court has no power to act where jurisdiction does not exist.
Habeas corpus jurisdiction is conferred on this Court by the Texas Constitution and by the Code of Criminal Procedure. Article 5, Sec. 5 of the Constitution provides in part:
“The Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and shall under regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction
Article 11.23, V.A.C.C.P., provides:
“The writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or *9degree not sanctioned by law.” (Emphasis added.)
The majority concludes that these provisions authorize Basaldua’s collateral attack upon the search and seizure condition of probation. To the contrary, the statute expressly authorizes jurisdiction only where the applicant is in custody or under arrest. See Ex parte Guzman, 551 S.W.2d 387 (Tex. Cr.App.1977) (dissenting opinion).
The probationary condition in question requires that Basaldua “[sjubmit his person, place of residence and vehicle to search and seizure at any time of the day or night, with or without a search warrant whenever requested to do so by the Probation Officer or any other law enforcement officer.” The identical condition was declared constitutionally infirm in Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976).
However, the judgment in the instant case was entered on July 7, 1975, prior to the decision in Tamez. Heretofore the search and seizure condition has not been used against Basaldua. Although such condition is unlawful, we cannot act on his habeas claim without presuming that the probation or other officers will fail to follow the law in the future and will use the condition against the applicant.
There has been no showing of a pending threat to Basaldua’s privacy. Under these circumstances, no restraint within the meaning of the statute exists, and, thus, the Court has no jurisdiction of his claim.
The majority relies on Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972); and Taylor v. State, 482 S.W.2d 246 (Tex.Cr.App.1972), for the proposition that both of Basaldua’s claims raise proper habeas corpus issues, and that “the proceedings should be considered as a habeas corpus proceeding since to dismiss the appeal and require a new and separate habeas corpus application would require a useless thing.” Those cases are not in point. In each of those the appellate jurisdiction of this Court was properly invoked.
The Ramirez case involved a revocation of probation. He did not have and did not waive counsel in the original trial. The Taylor case did not permit a collateral attack on the original conviction. In the Rice case the State conceded that jeopardy attached to a prior conviction. On appeal this Court set a void judgment aside. In those cases we were confronted with issues which could properly be raised by habeas corpus. The Court disposed of those issues in the interest of judicial economy.
In the instant case this Court has no appellate jurisdiction. Further, in those other cases the facts did raise a proper habeas claim and would invoke the Court’s habeas corpus jurisdiction. In the present case, however, Basaldua’s Fourth Amendment claim is not properly within our habe-as corpus jurisdiction for the reasons previously stated.
Today’s holding represents an unwarranted expansion of our habeas corpus jurisdiction and will open a “Pandora’s box” of frivolous claims. Under the majority’s reasoning, future probationers can collaterally attack probation orders by challenging any conditions of probation, statutory or otherwise, which present no real threat of confinement or restraint. Consider, for example, the many probationers who will now probably file for habeas corpus relief contending that conditions which prohibit them from associating with persons of “harmful character” are unconstitutionally vague.
Even assuming that we have jurisdiction of the Fourth Amendment claim, we should not issue a declaratory judgment and grant the relief sought when there is no showing of a pending threat to Basaldua’s privacy. If the probationary condition is used against him in the future, and his probation is revoked, he can challenge it then on appeal.
A major constitutional revision has been proposed to alleviate the workload of this Court. The majority is aggravating the situation by passing on issues such as this. As the Presiding Judge and author of the majority opinion stated in a similar context:
“. . . Since the present information will therefore not likely be used, I see no *10necessity for this Court, with the heaviest case load of any State appellate court in this nation, to write upon the sufficiency of an information that does not control the proper disposition of the case before this Court . . . ” Bullet v. State, 538 S.W.2d 785, 787 (Tex.Cr.App.1976).
If the majority is going to deal in the realm of possibilities, it is possible or even probable that one might appeal a refusal of a trial judge to act upon a motion to suppress evidence because it was obtained as a result of an illegal search. There would have been more restraint in that case than in the present case. In Bosley v. State, 414 S.W.2d 468 (Tex.Cr.App.1967), the writer of the majority opinion wrote for the Court that a trial judge did not have to pass upon the motion to suppress evidence but could consider the question during the trial. If there had been no other evidence except that obtained by the search, Bosley would have been under more of a restraint than Basaldua is because there has been no allegation that Basaldua has been or is about to be illegally searched.
Again in the realm of possibility, suppose that one learns that a search warrant has been issued for his building, and he seeks to have it vacated, but a judge will not do so. Under the opinion by the majority, he could appeal that decision because he is under restraint and an officer may violate his right to privacy.
Any time one has been charged for an offense and arrested, he is under some sort of restraint. However, this Court does not permit an attack upon his detention by ha-beas corpus unless the statute under which he is charged is void. Ex parte Brannon, 163 Tex.Cr.R. 311, 290 S.W.2d 914 (1956); Ex parte Merriell, 163 Tex.Cr.R. 534, 294 S.W.2d 400 (1956). There has to be a conviction and an appeal before his allegation of illegal detention is considered. There should not be a different rule in the present case. If his probation is revoked, he can appeal.
Since Tamez v. State, supra, has been decided, it is the law of this State, and Basaldua does not have to submit to the search. From his application for habeas corpus he knows that he does not have to submit to a search. He may inform any peace officer that he refuses to consent and that provision of probation may not be used against him. No judge confronted with a motion to revoke because a probationer refused to consent to search would revoke probation after being cited to Tamez, supra. If evidence is obtained as a result of an illegal search, it can be reviewed as in any other case where this Court has jurisdiction.
This Court does not have jurisdiction to pass upon this question, and it should so hold.
ROBERTS, J., joins in this dissent.