Rodriguez v. Brown
Decision Date | 02 July 1970 |
Docket Number | No. 28217.,28217. |
Citation | 429 F.2d 269 |
Parties | Fernando RODRIGUEZ, Jr., et al., Plaintiffs-Appellants, v. The Honorable Archie S. BROWN et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
Mario G. Obledo, Pete Tijerina, San Antonio, Tex., Jack Greenberg, Norman Amaker, New York City, for plaintiffs-appellants.
Sparta Bitsis, Asst. Criminal Dist. Atty., Ted Butler, Criminal Dist. Atty., Preston H. Dial, Jr., Asst. Crim. Dist. Atty., San Antonio, Texas, Crawford Martin, Atty. Gen. of Texas, Lonnie Zwiener, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.
Before WISDOM and INGRAHAM, Circuit Judges, and BREWSTER, District Judge.
Suit was instituted by Fernando Rodriguez, Jr., et al. on behalf of themselves and all others similarly situated, as plaintiffs, against The Honorable Archie S. Brown, The Honorable A. A. Semaan, as District Judges of the 144th and 175th State Judicial Districts, respectively; J. T. Palmer, Burton W. Armstrong, Mrs. Ann Gossett, Russell Chiodo and Joe M. Garza, as members of the Grand Jury Commission; and Elton Cude as District Clerk, defendants.
The suit was filed as a class action for injunctive and declaratory relief under 28 U.S.C. §§ 1343(3), 1343(4), 2201, 2202, 2281, 2284 and 42 U.S.C. § 1981, in which the jurisdiction of a three-judge district court was invoked pursuant to 28 U.S.C. §§ 2281 and 2284 to vindicate and enforce rights of the plaintiffs-appellants and members of their class guaranteed by the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution. The denial of these rights arises under certain statutes of the State of Texas, namely, to-wit: Articles 19.01, 19.04, and 19.08, Vernon's Ann.Code of Criminal Procedure ( ), which govern the qualifications of grand jury commissioners and members of the grand jury. The challenges to the constitutionality of the statutes are two fold: (a) the statutes are unconstitutional upon their face by the imposition of a wealth and social standard which bears no relevance to the competency of a person to serve as either a grand jury commissioner or as a grand juror, and (b) the statutes were unconstitutionally applied in that selection to the grand jury was restricted to a closed circle of business and professional people, friends, acquaintances and relatives of the grand jury commissioners.
Initially, the convening of a statutory three-judge court was denied. In the interim, Jackson v. Choate, 404 F.2d 910 (5th Cir. 1968), was published and a statutory three-judge court was designated. It was thereafter determined by the three-judge panel that the case was not one for a statutory three-judge court, but rather, should be heard and determined by a single judge, Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L. Ed. 152 (1933), Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), and Judge Spears, acting singly, but with the concurrence of the other two judges of the three-judge panel, denied relief to plaintiffs.
The brunt of plaintiffs' attack is to secure the right of qualified Mexican-American citizens in Bexar County, Texas, to be fairly chosen for service on grand jury commissions and grand juries in Bexar County, Texas, without discrimination based on national origin and to have the number of such persons chosen fairly so as to reflect a truly representative cross-section of the community, and that the freeholder, householder requirements discriminate because of socio-economic standards and background with respect to their opportunity to serve on grand jury commissions and grand juries in Bexar County.
The trial judge found as a fact that (1) approximately 28% of the total membership of the thirteen grand jury commissions over the past two year period were Mexican-Americans; (2) approximately 16% of the total membership of the grand juries for the same period were Mexican-Americans; (3) the percentage of Bexar County citizens available for jury service who are Mexican-Americans is between 15.4% and 17.5%; and (4) the disparity is not such as to indicate discrimination against Mexican-Americans. The trial judge also found as a fact that a fair number of those chosen as grand jurors and commissioners have been wage earners. These findings are supported by the record.
Over the years there have been many attacks upon the Texas jury system and procedures. And although the Supreme Court has reversed criminal convictions upon particular facts in specific cases, the attacks upon constitutionality have not been successful. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940).
In Hernandez, the Supreme Court, speaking through Mr. Chief Justice Warren, commented:
And in Cassell, speaking through Mr. Justice Reed:
Acting under the Texas statutes, the Dallas County grand-jury commissioners chose a list of sixteen males for this September 1947 grand jury from citizens eligible under the statute. The judge chose twelve of these for the panel. No challenge is now made to the fairness of this statutory system. We have approved it. (Emphasis added.)
And in Akins, speaking through Mr. Justice Reed:
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Dumont v. Estelle
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