(dissenting) :
I respectfully dissent from the decision of the majority reversing and remanding “with directions to convene a three-judge court.” I regard this case as clearly governed by the decision of this Court in Becker v. Thompson.1
Despite the attempt to draw fine distinctions2 between constitutional as*1183saults on a state criminal statute as applied (Becker v. Thompson) on the one hand, and facially (this case) on the other, the clear pronouncements of Becker v. Thompson should bind this panel:
“Stated another way, is the propriety of granting a declaratory judgment concerning threatened future criminal prosecution determined by the same test as the propriety of granting in-junctive relief, i. e., bad faith harassment? Younger v. Harris, supra. May we transpose to this case, where no state prosecution was pending, what was said about declaratory relief in Samuels v. Mackell, supra, where a state prosecution was pending:
[T]he same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and * * * where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well. Id. 401 U.S. at 73, 91 S.Ct. at 768.” Op. cit. 459 F. 2d at p. 921-922.
And:
“If the practical effects of injunc-tive and declaratory judgment remedies are identical because they result in the disruption of a state’s enforcement of its criminal statutes when a criminal prosecution is pending, and therefore bad faith harassment must be shown before either remedy may issue, and if, as we have seen, the same test of bad faith harassment is prerequisite to injunctive relief in a threatened criminal prosecution, it follows that a like showing must be made for declaratory relief in a threatened prosecution.” Op. cit. at p. 922.
And further:
“It is, of course, self-evident that where state prosecutions were pending Younger and Samuels established a limitation on the use of the Declaratory Judgment Act, 28 U.S.C.A. § 2201, to those cases where bad faith harassment was shown. The same limitation on the use of the Act necessarily applies in preprosecution cases.” Op. cit. p. 923.
And finally:
“If ‘the propriety of declaratory and injunction relief should be judged by essentially the same standards’, then in preprosecution cases there must be a showing of bad faith harassment for the granting of declaratory as well as injunctive relief. Cooley v. Endictor, 5 Cir. 1972, 458 F.2d 513.
We conclude that under the circumstances of this case, even though no state prosecution was pending against Steffel, since there was no showing of bad faith harassment, he was not entitled to a declaratory judgment.” Op. cit. p. 923.
The importance of Becker v. Thompson as a precedent in this Circuit is emphasized by the two opinions at pages 1338 to 1340 of 463 F.2d, first, that of Judges Gewin and Dyer specially concurring in the denial by the full Court of the petition for rehearing en banc, and second, that of Chief Judge Brown for himself and Judges Wisdom and Goldberg, dissenting from the denial of rehearing en banc.
It sharpens the basis of my dissent at this point to quote from the memorandum decision appealed from, which embodied findings of fact and conclusions of law:
“It is clear that plaintiff must assert traditional equitable grounds entitling him to the injunctive relief he requests. Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Perez v. Ledesma, 401 U.S. 82, 122, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); see also Douglas v. City of Jeanette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), and Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The facts of this case present no such equitable grounds for relief.
******
“In addition, this Court finds that under the circumstances surrounding the institution of this suit, the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), would be thwarted if plaintiff were granted relief from the state prosecution through federal interference. The Younger case repeats the admonition of Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926), that a suit to enjoin state prosecutions ‘even with respect to state criminal proceedings not yet for*1184mally instituted, could be proper only under very special circumstances.’ (emphasis added) Younger v. Harris, supra, 401 U.S. at 45, 91 S.Ct. at 751.
“The Younger doctrine of non-interference with pending state prosecutions is one of reasonableness and results from the necessity that our federal and state systems coexist and function to achieve the just and speedy disposition of criminal prosecutions. The rationale of the Younger doctrine would be defeated if races to the courthouse were allowed to circumvent the application of the rule.
“The facts of this case show that the plaintiff was arrested for suspicion of a violation of Article 152 and was released, and that the next day plaintiff was arrested again for the same conduct and later was indicted by a grand jury. The second arrest took place in the office of the district attorney, who is charged with enforcement of state penal statutes, where plaintiff had gone knowing that arrest was probable and with the intent of doing what he knew to be considered a violation of Article 152. The State officials had no alternative to the prosecution of plaintiff other than a complete abdication of their responsibilities to enforce the laws of the State of Texas. In this case, the good faith of the State prosecutors cannot be challenged.” (Emphasis supplied)
Absent a showing of bad faith harassment or irreparable injury there is simply no equitable ground for declaratory relief. Bad faith harassment was neither alleged nor proved below. Charges stemming from the first arrest were dismissed and it was only when Jones presented himself in the office of the state district attorney — a place where his attorney had warned him that arrest was likely — that the second arrest occurred.
Affirmance of the district court’s dismissal of the action seems to me to be mandated by the Younger v. Harris double trilogy 3 as construed and applied by us in Becker v. Thompson.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, IN-GRAHAM and RONEY, Circuit Judges.
BY THE COURT:A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.
It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
. Becker v. Thompson, 5 Cir. 1972, 459 F.2d 919, pet. for rehearing and rehearing en banc denied, 5 Cir. 1972, 463 F.2d 1338, certiorari granted sub nomine, Steffel v. Thompson, 1973, 410 U.S. 593, 93 S.Ct. 1424, 35 L.Ed.2d 686. See further, Cooley v. Endictor, 5 Cir. 1972, 458 F.2d 513; Thevis v. Moore, 5 Cir. 1971, 440 F.2d 1350.
. See the majority opinion pages 11-13, printed copy.
. In addition to Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688, discussed at length by the majority opinion in Becker v. Thompson, see specifically further Boyle v. Landry, 1971, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696, reversing a three-judge district court’s injunction against both pending and anticipated prosecutions in the Illinois state courts under Illinois statutes alleged to be unconstitutional. I quote from the portion of the court’s opinion dealing specifically with the Illinois intimidation statute held unconstitutional, under which no charges had been brought:
“There is nothing contained in the allegations of the complaint from which one could infer that any one or more of the citizens who brought this suit is in any jeopardy of suffering irreparable injury if the State is left free to prosecute under the intimidation statute in the normal manner. As our holdings today in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L.Ed.2d 688, show, the normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future. The policy of a century and a half against interference by the federal courts with state law enforcement is not to be set aside on such flimsy allegations as those relied upon here.
“For the reasons set out above and for those set out at greater length today in Younger and Samuels, we reverse.”