# Pannell v. State > Court of Criminal Appeals of Texas · February 29, 1984 · 666 S.W.2d 96 URL: https://www.frixlaw.com/law-library/cases/9858364 ## Case - **Full name:** Cedric Lee PANNELL, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** February 29, 1984 - **Citations:** 666 S.W.2d 96 - **Precedential status:** Published - **Opinion:** Dissent by Clinton - **Judges:** McCormick, Clinton, Teague, Miller - **Cited by:** 48 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9858364 ## How later opinions describe it (automated extraction) - holding that a Disciplinary Rule of the Code of Professional Responsibility is not the type of law referred to in Article 38.23 because violations of these rules are dealt with by means of administrative mechanisms - holding that the Disciplinary Rules of the Code of Professional Responsibility "are not laws of the State of Texas" for purposes of statute which excludes the admission of evidence obtained in violation of law - concluding that state bar rules, which are promulgated by Texas Supreme Court rather than legislatively enacted, do not have same force and effect as statutes - holding violation of a disciplinary rule was not a violation of a "state law” within the meaning of the exclusionary rule ## Opinion text CLINTON, Judge, dissenting. A majority of the Court simply will not come to grips with appellant’s challenge to selection of grand jury foremen. In tenor and tone the opinion of the Court En Banc echoes that of the opinion on original submission. Both reprise irrelevancies of the *101 past; neither correctly follows the lead of decisions rendered by the Supreme Court of the United States. I respectfully dissent. The majority panel opinion noted negatively that composition of the grand jury that indicted appellant was not shown, although his complaint is directed to only the foreman of the grand jury. As to that, the opinion remarks, “[N]or was there any showing as to how the grand jury foreman is selected.” Yet Article 19.34, V.A.C.C.P., and its predecessors have always provided that once the grand jury is completed, “the court shall appoint one of the number foreman.” The venerable “presumption of regularity” leads us inevitably to the conclusion that the grand jury foreman is selected by the judge of the trial court in accordance with the law. Though it does not reiterate what the panel opinion stressed was not shown, the majority opinion on rehearing is full of its own negativism. It fails to put in proper perspective the witnesses who did testify as to their knowledge that a black had not served as foreman of a Hunt County grand jury. Trial of this cause was held in 1978 — before the alternative method of selection of grand jurors was enacted. See Article 19.-01, V.A.C.C.P., 1 as amended in 1979. Thus, the district clerk occupied a position so sensitive that one must swear not to converse with anyone selected to serve as a grand juror concerning any ease or proceeding, Article 19.11; the clerk made out a copy of names of persons selected as grand jurors, certified to it and delivered the list to the sheriff for summoning, Article 19.13; after executing such summons, the sheriff returned the list to the clerk with his certificate showing date and manner of service. Once as many as twelve persons so summoned were in court, the judge or one acting under direction of the judge shall proceed to qualify each prospective grand juror, Articles 19.21-26, and impanel twelve of them. Considering general duties of district clerks in criminal matters, e.g., Article 2.21, presence of the clerk in court during such proceedings may be presumed. Indeed, after the judge has appointed a foreman, the clerk may be directed to administer the grand jurors oath prescribed by Article 19.34. The foreman of a grand jury may issue process, Article 20.10, and when the grand jury is not in session process is returned to the district clerk. The foreman signed each indictment, Article 20.20, and delivered them to the court, Article 20.21, but the clerk enters upon the minutes the fact that an indictment has been presented, Article 20.22. Therefore, the district clerk of Hunt County is more akin to the clerks who testified they “had never known of a negro serving on a grand jury in Jackson County” in Norris v. Alabama, 294 U.S. 587, 591 , 55 S.Ct. 579, 581 , 79 L.Ed. 1074 (1935), to whom the Supreme Court alluded in Rose v. Mitchell, 443 U.S. 545, 572 , 99 S.Ct. 2993 , 61 L.Ed.2d 739 (1979), than the grand jury foremen therein who were not shown to be “knowledgeable about years other than the ones they themselves served,” id., at 573 , 99 S.Ct. at 3009 . Grand jury foremen come and go, but district clerks are more constant. Similarly, a county auditor is charged with duties and functions relative to judges, grand jurors and grand jury foremen: “He shall keep a register of all warrants issued by the judges or the district ... clerks on the county treasurer, and their dates and payment by the treasurer. Such clerks or judges shall daily furnish the auditor an itemized report specifying the warrants that have been issued ... the names of the persons to whom payable, and for what purpose...” Article 1662, V.A. C.S. Indeed, unless for jury service, all warrants on the county treasurer must be countersigned by the county auditor. Article 1661, V.A.C.S. Generally, of course, the auditor is appointed by district judges with jurisdiction in the county. Article 1647, V.A.C.S. *102 Since the Judicial Districts Act of 1969, Hunt County has constituted the 196th Judicial District. Article 199a, Sec. 3.023, V.A.C.S. It has two continuous terms, the first commencing on the first Monday in January and the second on the first Monday in July of each year. Id., 2.001. Formerly Hunt County was within both the 8th and 62nd Judicial Districts, and each district court had two terms of court, though the judge of the latter impaneled a grand jury only when in his judgment it was necessary to do so. Article 199, Secs. 8 and 62, V.A.C.S. Article 19.01 directs a district judge to appoint grand jury commissioners “at or during any term of court.” Thus, again giving effect to the presumption of regularity, from 1946 to 1978, some 64 appointments to serve as grand jury foreman have been made by a district judge of Hunt County. The majority may apply the “rule of exclusion” should it desire. However, the majority faults the district clerk and county auditor for their respective lack of knowledge as to race of grand jury foremen “before 1946.” I merely observe that in Castaneda v. Partida, 430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977), a period of eleven years sufficed to make a prima facie case. I dissent. MILLER, J., joins. . Each cited article hereafter is in code of criminal procedure unless otherwise indicated. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9858364. Public record. Not legal advice.