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BURNS v. ESTELLE

No. 78-3109.

626 F.2d 396 (1980)

James Paul BURNS, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, and Robert Cousins, Warden, Ellis Unit, Texas Department of Corrections, Respondents-Appellees.

United States Court of Appeals, Fifth Circuit.

September 24, 1980.

Attorney(s) appearing for the Case

Richard J. Clarkson, Beaumont, Tex., for petitioner-appellant.

Joel Berger, Legal Defense Fund and Educational Fund, Inc., Jack Greenberg, James M. Nabrit, III, John Charles Boger, Deborah Fins, New York City, Anthony G. Amsterdam, Stanford University Law School, Stanford, Cal., amicus curiae.

Mark White, Atty. Gen., Anita Ashton, Asst. Atty. Gen., Austin, Tex., for respondents-appellees.

Carol S. Vance, Dist. Atty., Houston, Tex., amicus curiae.

Before COLEMAN, Chief Judge, BROWN, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON and THOMAS A. CLARK, Circuit Judges.

GEE, Circuit Judge:

As the Supreme Court has observed, Adams v. Texas, ___ U.S. ___, ___, 100 S.Ct. 2521, 2525, n.2, 65 L.Ed.2d 581 (1980), we heard oral argument en banc in this matter on January 8, 1980, to reconsider the opinion and decision of our panel reported at 592 F.2d 1297 (5th Cir.). That opinion held, in summary, that section 12.31(b) of the Texas Penal Code, which disqualifies jurors unwilling to swear that a mandatory...

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