The opinion
ON APPELLANT’S MOTION FOR REHEARING
WOODLEY, Judge.
Appellant’s motion for rehearing is devoted to his contention that racial discrimination as a matter of law in violation of the Fourteenth Amendment to the Constitution of the United States is shown by the following stipulated facts:
1. No Negro has ever served or been selected to serve as a grand jury commissioner in Galveston County for the past thirty-one years.
2. For a period of thirty years next preceding the return of the indictment in this cause only two Negroes have served as grand jurors in Galveston County.
3. The grand jury that indicted the defendant in this cause consisted of twelve white men.
Other stipulations bearing upon the question include the *186 following: “that in so far as the selection, drawing and summoning of petit or trial juries are concerned there is not now and has not been for many years any discrimination against Negroes in Galveston County.”
The stipulation indicates that two Negroes had served as grand jurors in Galveston County. The exact time of their selection is not shown.
If selected at the previous term or at a recent term, an abandonment of the practice of excluding Negroes, rather than the existence of discrimination might well be inferred.
The question raised in this motion has received the close attention and study of all members of this court, and it would serve no useful purpose to write further upon it.
We cannot agree that the personnel of the grand jury commission, regardless of their race, is of consequence — their sole function is to select the members of the grand jury panel.
Should they select an all Negro panel, certainly it could not be urged that a conviction of a Negro accused must be set aside because the commission was composed only of whites.
If there be no discrimination in the selection of the grand jurors, appellant has no basis for complaint.
We remain convinced that the trial court properly overruled appellant’s motion to quash the indictment upon his finding that discrimination in the selection of the grand jury was not shown.
Furthermore, he having received a fair and impartial trial before a trial jury selected admittedly without discrimination, we think appellant’s constitutional rights were not violated.
The motion for rehearing is overruled.
Opinion approved by the court.
Order
GRAVES, Presiding Judge.
The judgment of conviction was affirmed by the Texas Court *187 of Criminal Appeals on June 7, 1950, and appellant’s motion for rehearing was overruled October 25, 1950, and mandate issued.
Thereafter, appellant made application to the Supreme Court of the United States for a writ of certiorari which was granted, and on April 30, 1951, the Supreme Court reversed the judgment of the Court of Criminal Appeals of Texas and remanded said cause for further proceedings not inconsistent with said order of the Supreme Court of the United States.
Therefore, in compliance with said order this cause is now remanded to the District Court of Galveston County, 56th Judicial District, for further proceedings not inconsistent with the opinion of the Supreme Court of the United States.
This the 6th day of June, 1951.