concurring in part, and dissenting in part.
I concur in the result reached by the majority under the facts presented and am in essential agreement with subdivisions, I, II and IV of the excellent opinion written by Judge Goldberg. This case is unusual and distinctive because Muniz was denied any effective remedy with respect to discriminatory jury composition due to the fact that at the time of his trial in 1942 Texas did not recognize Mexican-Amerieans as an identifiable ethnic group. Such fact is clearly shown by the majority opinion. See Sanchez v. State, 147 Tex.Cr.R. 436, 181 S.W.2d 87 (1944); Salazar v. State, 149 Tex.Cr.App. 260, 193 S.W.2d 211 (1946); Sanchez v. State, 156 Tex.Cr.R. 243, 243 S.W.2d 700 (1951); Hernandez v. State, 160 Tex.Cr.R. 72, 251 S.W.2d 531 (1952). The Texas law was not changed until the Supreme Court decided Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L. Ed. 866 (1954). This unique situation places Muniz in an odd category and in my opinion entitles him to the relief granted.
I must disagree with the retroactivity aspect of the majority opinion as delineated in section III. In my view the opinion fails to give proper consideration to the principles which control retroactivity. I would apply the holding in this case prospectively only, and limit its application to this case, to cases on direct appeal and to pending cases (including habeas corpus and 2255 cases) in which the jury composition issue has been raised. See Blake v. United States, 407 F.2d 908 (5th Cir. 1969). In reaching this conclusion I do not disparage, in any sense, the constitutional guarantee involved. A choice between retroactivity and non-retroactivity does not require disparagement.
We here stress that the choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved * * * [W]e do not disparage a constitutional guarantee in any manner by declining to apply it retroactively.
Johnson v. New Jersey, 384 U.S. 719, at 728, 86 S.Ct. at 1778, 16 L.Ed.2d 882, at 889.
The majority opinion asserts, “We are neither announcing new doctrine nor following new doctrine.” However, in dealing with the question of waiver, it is declared by the majority:
Applying these principles in the present case, we must conclude that appellant could not have waived his rights, *715for it was not until 1954 — twelve years after appellant’s indictment and trial —that Texas recognized the right of Mexican-American defendants to protest the exclusion or underrepresentation of Mexiean-Americans in the composition of grand juries and petit jury venires. Indeed, the Texas Court of Criminal Appeals in the 1940’s and the 1950’s repeatedly held that MexieanAmericans could not be considered as an identifiable ethnic group for purposes of jury composition cases.
To support its retroactivity holding the majority relies on Strauder v. West Virginia, 100 U.S. 103, 25 L.Ed. 664 (1880) and Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), and observes that the rule prohibiting discrimination in jury selection is an ancient rule. What the majority apparently overlooks is the fact that the excluded class in Strauder and in Norris consisted of Negroes. Mexiean-Americans as an identifiable and distinct ethnic group had not been recognized at the time of the decision in Strauder in 1880 or when Norris was decided in 1935. The first recognition of Mexiean-Americans as an ethnic group or distinct class as related to the issue here under consideration occurred when the Hernandez case was decided in 1954, seventy-four years after Strauder. The opinion relies on no cases decided by this court in which the Mexican-American jury composition question was decided prior to this timé within the purview of the present factual situation. If Muniz had been tried and convicted after the Hernandez decision, serious questions as to waiver would be presented. Indeed, the findings of the state court might constitute a serious impediment to the application of the waiver principle in favor of Muniz.1
In a sense the existence of every constitutional right parallels the existence of the provision in the Constitution upon which such right is grounded. Our holding as to Muniz recognizes a new constitutional principle in substantially the same fashion as Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), declared a new constitutional concept. Well over a decade before the decision in Mapp, the ease of Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), condemned unreasonable searches and seizures by state officers as violative of the Fourth and Fourteenth Amendments. Mapp was new only to the extent that it required the application of the exclusionary rule in state court proceedings. Therefore, even though racial discrimination in the selection of juries has long been condemned with respect to Negroes, the recognition of the right of Mexiean-Americans as a distinct ethnic group to challenge indictments because of discrimination is a clear and unequivocal break with the past.
It is pertinent to observe that one of the leading cases dealing with the retro-activity problem arose in this court, United States ex rel. Linkletter v. Walker, 323 F.2d 11 (5th Cir. 1963), affirmed by the Supreme Court, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In those opinions this court and the Supreme Court enunciated guidelines and principles to be followed in deciding whether a decision should be applied retroactively or prospectively. Both decisions recognized the fact that fundamental constitutional rights were involved. Such rights were not considered “meager or paltry” nor were they described as “a mere constitutional frill or furbelow.”2 Notwithstanding the importance and gravity of the constitu*716tional issues involved, both Linkletter decisions held that the rule of Mapp should be applied prospectively only.
In a long and impressive list of cases many courts have refused to apply new rules affecting criminal procedures retroactively. See 10 A.L.R.3d 1371, 1384. The following Supreme Court decisions will serve to illustrate and emphasize the point, Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L. Ed.2d 453 (1966) (adverse comment upon failure of state defendant to testify unconstitutionál); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L. Ed.2d 882 (1966) (police interrogation in violation of Escobedo and Miranda principles); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (identification in police line-up without counsel); DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) (state criminal convictions in violation of the constitutional right to jury trial); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1964) (electronic surveillance in violation of the Fourth Amendment). Pertinent to the problem is the following observation by Mr. Justice Stewart:
Thus we must reckon here, as in Linkletter, 381 U.S. at 636, 85 S.Ct., at 1741, 14 L.Ed.2d at 612, with decisional history of a kind which Chief Justice Hughes pointed out “is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.”
Tehan v. United States ex rel. Shott, supra, 382 U.S. at 413, 86 S.Ct. at 463.
It appears to me that the majority holds that the only factor to be considered in determining retroactivity vel non is whether the case involves a “new constitutional interpretation.” Having so decided every other consideration is brushed aside. While I can not agree that Muniz presents “nothing new,” the position of the majority still would not be acceptable because it fails to give any consideration to established criteria in deciding the retroactivity question. As indicated earlier, it may be argued that there is nothing new in the Fourth, Fifth, Sixth and Fourteenth Amendments, all of which, together with other constitutional principles, were involved in the cases cited in the preceding paragraph. Those cases simply apply constitutional principles to unusual and distinctive facts in circumstances of a modern and changing society. When the Fourth Amendment was adopted it may have been necessary to show a “trespass” or “actual intrusion into a constitutionally protected area” to constitute a violation of its concepts, but when Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1969) was decided, involving modern electronic surveillance techniques, the court departed from the old trespass and physical intrusion requirements in order to find a violation. The controlling Fourth Amendment principles were not new; they were only applied to a new different and modern set of facts. So it is with Muniz. There has been no consideration of the following criteria summarized by the Supreme Court in Stovall for determining whether a holding should be given retroactive or prospective effect:
The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.
388 U.S. at 297, 87 S.Ct. at 1970, 18 L. Ed.2d at 1203.
Perhaps the most important of Stovall’s three principles is the purpose to be served by the new rule. Desist v. United States, supra. It is doubtful that a defect in grand jury composition, at least as presently applied to Mexican-Americans, would affect “the very integrity of the fact finding process” and present a *717“clear danger of convicting the innocent.” Linkletter v. Walker, supra; Tehan v. Shott, supra. It is more than probable that there are substantial numbers of Texas state prisoners who were indicted by improperly constituted grand juries, but were either tried before properly constituted petit juries or waived their right to trial by pleading guilty.
[Wjhether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree * *. We are thus concerned with a question of probabilities and must take account, among other factors, of the extent to which other safeguards are available to protect the integrity of the truth-determining process at trial, (emphasis added).
Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 16 L.Ed.2d 882, 889-890 (1966). Moreover, it is easy to foresee that a significant impact on the administration of the criminal laws of Texas, and probably other states as well, may result from retroactive application of the majority decision. We judicially know that enhancement is a vital part of the Texas criminal law system. Upsetting prior convictions may seriously affect enhancement cases. In addition, the use of prior convictions for impeachment purposes is currently being challenged upon the basis that some defect existed in the trial procedure at the time of conviction. Retroactive application would not only necessitate the recalling of grand juries to reindict defendants, but would also require such cases to proceed to retrial before petit juries. This procedure would result in serious clogging of court dockets and in a substantial delay in the administration of justice where other defendants are concerned. The foregoing will serve to demonstrate the reason for my apprehension, but it is entirely likely that the illustrations could be substantially increased.
For the above reasons I must dissent.
. See Appendix I wherein the state court found:
34. One of the attorneys for petitioner, Mr. Eoybal, had in previously tried eases, in this and adjoining counties, filed motions to quash indictments and petit jury panels on the allegation of systematic exclusion of American citizens of Mexican extraction.
35. The attorneys for petitioner, after having conferred on whether to file such motions to quash in this case, elected not to do so.
. See majority opinion page 1.