dissenting.
The majority relies on Ex parte Menefee, Tex.Cr.App., 561 S.W.2d 822, with which I cannot agree (see dissenting opinion in White v. State, 843 S.W.2d 576, and goes a step beyond in arriving at its holding.
V.T.C.A. Family Code, Section 54.02(h), provides:
“If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings. On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.” [Emphasis supplied.]
The Criminal District Court satisfied the “second vital step is determining whether a juvenile should be tried as an adult” required by Menefee v. State, supra, and White v. State, supra, when it held an examining trial on December 8, 1975. The majority concludes that when such examining trial did not find probable cause that such finding “effectively remanded appellant to the jurisdiction of the juvenile court.” Section 54.02(h), supra, leaves it to the discretion of the court holding the examining trial as to whether there shall be a remand to the juvenile court, that section providing, “The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.” [Emphasis supplied.]
*734That the Legislature intended to leave such matter to the discretion of the court conducting the examining trial is further evidenced by V.T.C.A. Family Code, Sec. 54.02(i), which provides if the grand jury does not indict, the district court “shall certify the grand jury’s failure to indict to the juvenile court.” [Emphasis supplied.]
The majority disregards that provision of Sec. 54.02(h), supra, which provides, “On transfer of the child for criminal proceedings, he shall be dealt with as an adult in accordance with the Texas Code of Criminal Procedure.” [Emphasis supplied.] As noted in the majority opinion, “it is not uncommon nor improper for a grand jury to return an indictment against an adult discharged at an examining trial.”
The appellant was accorded “the second vital step” mandated by Menefee and White when he was given an examining trial in the Criminal District Court of Jefferson County. It was then within the discretion of the court as to whether it should remand the appellant to juvenile court upon probable cause not being found, Sec. 54.02(h) providing that such court “. . . may remand the child to the jurisdiction of the juvenile court.” [Emphasis supplied.] When appellant was transferred to district court from juvenile court, he was to be “dealt with as an adult” under Sec. 54.02(h). The grand jury returned indictments against appellant for capital murder and murder. I would hold that the grand jury had jurisdiction to take such action.
I dissent.
DOUGLAS, DALLY and W. C. DAVIS, JJ., join in this dissent.