The opinion
On 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 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 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