Dumont v. Estelle

• Decision Date: 22 May 1974
• Docket Number: Civ. A. No. 72-H-1663.
• Citation: 377 F. Supp. 374
• Parties: Donald V. DUMONT v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections.
• Court: U.S. District Court — Southern District of Texas

377 F. Supp. 374

Donald V. DUMONT v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections.

Civ. A. No. 72-H-1663.

United States District Court, S. D. Texas, Houston Division.

May 22, 1974.

Harry H. Walsh, Donald L. Kraemer, Huntsville, Tex., for petitioner.

Ben M. Harrison, Asst. Atty. Gen., Austin, Tex., for respondent.

Memorandum and Order:

SINGLETON, District Judge.

On March 26, 1965, Donald V. Dumont, the petitioner here, was convicted of possession of heroin. The jury assessed his punishment at life imprisonment. He filed a petition for writ of habeas corpus, alleging the grounds brought here, in the convicting court. The petition was denied October 17, 1972. The Court of Criminal Appeals denied the writ on December 19, 1972. Petitioner has thus exhausted his state remedies.

On July 25, 1973, a hearing was held on the question in this court. Petitioner contends that he is illegally restrained and that his conviction is void because he was indicted by an illegally constituted grand jury.¹

The grand jury which indicted Dumont was organized in the November 1964 term of Criminal District Court No. 5, Harris County, Texas. The indictment was filed December 18, 1964.

I. The Texas Jury System in 1964

In 1964, a grand jury was chosen by a two-step process. Much as he does today, a district judge first chose from three to five jury commissioners Code of Criminal Procedure art. 333, now art. 19.01. Next, those commissioners handpicked sixteen grand jurors for the venire Code of Criminal Procedure art. 338, now art. 19.06. The statutes set forth in detail the requirements for grand jury commissioners and grand jurors.

Vernon's Annotated Code of Criminal Procedure 1925, art. 333, reads:

Such commissioners . . . shall possess the following qualifications:

1. Be intelligent citizens of the country and be able to read and write the English language 2. Be qualified jurors and freeholders in the county;

3. Have no suit in said court which requires intervention of a jury;

4. Be residents of different portions of the county; and

5. The same person shall not act as jury commissioner more than once in the same year.

Vernon's Annotated Code of Criminal Procedure 1925, art. 339 present art. 19.08, reads:

No person shall be selected or serve as a grand juror who does not possess the following qualifications:

1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county, but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror.

2. He must be a freeholder within the State, or a householder within the county.

3. He must be of sound mind and good moral character.

4. He must be able to read and write.

5. He must not have been convicted of any felony.

6. He must not be under indictment or other legal accusation for theft or of any felony.

Since Dumont's indictment, the grand jury statutes have been revised. In 1965, article 339 was reenacted as article 19.08 to include wives of householders. In 1969, the freeholder-householder requirement was completely deleted from the qualifications for grand jury service. The freeholder requirement for grand jury commissioners was deleted in 1971. Thus, the provisions of the statute to which Dumont objects are no longer in effect. Cf. Vernon's Annotated Code of Criminal Procedure 1965, arts. 19.01 and 19.08 (Supplement 1972-1973). Dumont contends that the statutes on their face and as they were applied to him were unconstitutional inasmuch as they allowed a selection of a grand jury panel which was not based on a random selection from the rolls of the qualified registered voters, or a representative list of qualified citizens, and which excluded from consideration poor people, daily wage earners, and nonfreeholders. Petitioner alleges that through these statutes the State of Texas has systematically excluded these recognizable classes of people from serving as jury commissioners and grand jurors, basing the exclusion on no reasonable or rational state interest, and that in this way the State has denied him due process and equal protection of the laws by denying him the constitutional right to be indicted by a grand jury representative of the community.

The State has answered that petitioner has waived his right to challenge the indictment and, in the alternative, that his claim is without merit because he himself has not been injured by the selection of the grand jury.

II. Are old articles 333 and 339 unconstitutional?

The Texas grand jury system has been challenged many times in the context of racial discrimination. It has always been found capable of constitutional application, although in individual cases the system has failed. 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). See also Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966). Petitioner here challenges the statute's constitutionality, both as it is written and as it is applied, but he does not allege racial discrimination. Since the questions presented here have never been presented to the United States Supreme Court, the holdings of the above-cited cases that the Texas statutes are facially valid are of only limited applicability here.

The first task is to determine what the classifications "freeholder" and "householder" mean. At first blush, they would seem to be wealth and property classifications.

Since Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), poverty has been regarded in certain circumstances as a recognizable and suspect classification. Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), McDonald v. Board of Election Comm'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969), Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973).

Judge Wisdom in his dissent in the first Rodriguez v. Brown, 429 F.2d 269, 274 (5th Cir. 1970) later reheard en banc, felt that the freeholder requirement was one of wealth: "The requirement that jury commissioners be freeholders is an anachronism offensive to the United States Constitution. `Lines drawn on the basis of wealth or property, like those of race * * * are traditionally disfavored.'" Harper v. Virginia State Board of Elections, supra.

The Supreme Court has recently pointed out in San Antonio Ind. School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), however, that not every classification based on wealth can automatically be assumed to be suspect. Rather, the Court cautions lower court judges to focus on the unique features of alleged discrimination. Rodriguez, supra at 4412.

A study of the statistics presented at trial reveals that the householder-free-holder requirements are not property and wealth requirements in the true sense. They do not separate those who have a certain amount of property from those who do not so much as they separate those who have a certain kind of property from those who do not.

No doubt anticipating this conclusion, petitioner has further alleged that the grand jury which indicted him was unconstitutional because five prominent Harris County citizens served as jury commissioners and chose as grand jurors a list of sixteen prominent Harris County citizens who indicted him.

III. The Statistics

Petitioner presented two sets of statistics compiled for Harris County. The first set of statistics was taken from the 1970 census figures. They reveal, according to the testimony of a Harris County demographic expert, that a freeholder requirement would eliminate some 40% of the population of Harris County from grand jury service. After correcting for the difference between the census definition and the classic definition of freehold, the requirement would eliminate a substantial portion of the population (some 300,000 to 350,000 persons in Harris County) from serving as jury commissioners.²

The expert testified that national census figures revealed that of persons who made more than $5,000 per year in 1970, 80% owned their own homes. Of persons who made less than $5,000, there was one chance in three that they would own their own home. In the ethnic category, 69% of Whites in Harris County owned a home while only 45% of Blacks or Mexican-Americans owned a home. The expert concluded that the persons excluded by the freeholder requirement would tend to be younger persons, women, Blacks, Mexican-Americans, and the poor.

In order to be a grand juror in 1964, one had to be either a freeholder or a householder. The 1970 census figures reveal approximately 500,000 householders.³ The expert testified that this would make the grand jury pool differ from the jury commissioner pool only to the extent that it would increase the number of poor and minority males. It would not reduce sexual or age bias as only 10% of the heads of households are female, and the younger one is the less likely one is to be head of a household. He estimated that the freeholder-householder requirement would have reduced the 1970 grand jury pool by 300,000 had Harris County been operating under the old statute.

The expert further testified from past knowledge and study that a system of personal selection tends to solidify into a pattern because most persons do not relate to random selection. The attitudes of an individual are tied to and made up of environment, age, sex, and religious and ethnic background, all of...