holding statutory scheme, which provided for automatic assessment of cost of court-appointed counsel against defendant upon conviction and allowed court to make repayment a condition of probation without regard to ability to pay, was consistent with constitution where defendant's probation could not be revoked unless failure to make payment was intentional and defendant was able to make payment
How later courts described this case
- holding statutory scheme, which provided for automatic assessment of cost of court-appointed counsel against defendant upon conviction and allowed court to make repayment a condition of probation without regard to ability to pay, was consistent with constitution where defendant's probation could not be revoked unless failure to make payment was intentional and defendant was able to make payment
- holding that there is no constitutional or statutory authority permitting a direct appeal from an order modifying or refusing to modify conditions of community supervision
- concluding no constitutional or statutory authority conferred jurisdiction to hear appeal from order altering or modifying, or refusing to alter or modify, probation conditions
- holding that an order modifying the conditions of community supervision is not appealable at the time of modification
Written by the judges who cited it.
The opinion
ODOM, Judge,
concurring.
I concur in the conclusion of the majority that appellate jurisdiction does not lie in *8 this 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.