Partida seeks habeas corpus relief contending that he was denied due process and equal protection of law because the grand jury of Hidalgo County, Texas, which indicted him, was unconstitutionally underrepresented by Mexican-Americans. The district court held that Partida had established a prima facie case of discrimination against Mexican-Americans in the grand jury selection process, but that it had been rebutted. Finding that the county's1 evidence was insufficient to rebut the prima facie case, we reverse.

Partida was indicted on March 17, 1972, and was found guilty of the charge against him. On motion for a new trial, Partida presented his Mexican-American exclusion claim for the first time. His motion was denied and he appealed to the Texas Court of Criminal Appeals. Although his challenge to the grand jury was untimely2 and, therefore, apparently waived,3 the Texas court ignored that fact and proceeded to reject Partida's grand jury contention. Partida v. State of Texas, Tex.Cr.App., 1974, 506 S.W.2d 209. Thereafter, his petition for the writ was filed, dismissed, and this appeal taken.

Initially, respondent asks us to deny petitioner federal habeas corpus relief because he waived his challenge to the composition of the grand jury. However, the waiver argument was made to the Texas Court of Criminal Appeals which nevertheless chose to consider the merits of the claim. Under these circumstances, habeas relief may lie and the district court was correct in reaching the merits. Warden v. Hayden, 1967, 387 U.S. 294, 297, fn. 3, 87 S. Ct. 1642, 18 L. Ed. 2d 782; Irvin v. Dowd, 1959, 359 U.S. 394, 406, 79 S. Ct. 825, 3 L. Ed. 2d 900; Hale v. Henderson, 6 Cir. 1973, 485 F.2d 266, 269.

Every criminal defendant is entitled to be indicted and tried by grand and petit juries whose members have been selected in a non-discriminatory manner. Jury discrimination, however, is not an easy matter of proof. The " rule of exclusion" is usually utilized. According to this rule, a prima facie case of discrimination is established by showing a disparity between (1) the percentage which the ethnic or racial group constitutes of the persons from whom a jury list is drawn and (2) the percentage which that group constitutes of the jury list compiled. Once a defendant establishes his prima facie case, the burden shifts to the State to offer a satisfactory explanation why the disparity exists. Muniz v. Beto, 5 Cir. 1970, 434 F.2d 697, 700.

Partida relied on the rule of exclusion to establish his prima facie case. First, he demonstrated that Mexican-Americans constituted a separately identifiable ethnic group in Hidalgo County, Texas. Then, he introduced evidence that in 1970, the total population of Hidalgo County was 181,535 persons of which 143,611, or approximately 79.2%, were persons of Spanish language or Spanish surname.4 Next, petitioner presented evidence showing the composition of the grand jury lists5 over a period of ten years prior to and including the term of court in which the indictment against him was returned. Of the 870 persons selected for grand jury duty, only 39.0% were Mexican-Americans. In the two and one-half year period previous to the indictment, 45.5% of the panelists were persons of Mexican descent.

As these figures show, the disparity between Mexican-Americans in the population and those on the grand jury was significant: over the full ten year period, it was 40.2%; for the shorter two and one-half year period, it was 33.7%.6 This disparity clearly establishes a prima facie case. Black v. Curb, 5 Cir. 1972, 464 F.2d 165; Colson v. Smith, 5 Cir. 1971, 438 F.2d 1075; Preston v. Mandeville, 5 Cir. 1970, 428 F.2d 1392; Muniz v. Beto, supra.

Respondent then had the burden to rebut petitioner's statistical presentation. It is at this juncture that we disagree with the district court.

Respondent's rebuttal evidence was limited to the testimony of State District Judge Alamia, who selected the grand jury commissioners, who selected the grand jury who indicted petitioner.7 Judge Alamia offered no explanation for the disparity. Indeed, he testified that he sought a balance of grand jury commissioners according to ethnic origin, race, sex and age, yet did not instruct the commissioners to do the same. In addition, he admitted that the grand jury selection process has not resulted in ethnically-representative grand jury panels.

In addition to Judge Alamia's testimony, the district court based its decision on the "governing majority" status of Mexican-Americans in Hidalgo County.8 He reasoned that Mexican-Americans in such a position would not purposefully and intentionally discriminate against themselves. Therefore, the discriminatory intent presumed by petitioner's prima facie case was overcome. We cannot agree. The fact of governing majority status may mollify the prima facie case, but it does not nullify it. This may be done only by proof to explain the disparity. Without it, petitioner must prevail.

While the Texas system of selecting grand jurors is constitutional, Smith v. Texas, 1940, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84; Brooks v. Beto, 5 Cir. 1966, 366 F.2d 1, the unbridled discretion afforded the jury commissioners to prepare the grand jury list requires close scrutiny of the disparities and the proof offered to explain them. Here, the disparities are too great and the proof offered too paltry.

The district court's judgment is reversed and the case is remanded for further proceedings consistent with this opinion.9

Reversed and remanded.