Peremptory Challenge for Jury Selection in Texas

What Is a Peremptory Challenge for Jury Selection?

Background

The Bill of Rights in the Texas Constitution guarantees litigants a right to trial by a fair and impartial jury. (Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 708 [Tex. 1989].)

A peremptory challenge, commonly referred to as a ‘strike’, is defined as “one made to a juror without assigning any reason therefore.” (Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 750 [Tex. 2006]; Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 917 [Tex. 1979].) Peremptory challenges allow parties to reject jurors they perceive to be unsympathetic to their position. (Id.)

How to Structure the Motion

As a general rule, each party to a civil case in district court is entitled to six peremptory strikes. (Tex. R. Civ. P. 233.) However, in a multiparty case, the trial court must

decide whether any of the litigants aligned on the same side of the docket are antagonistic with respect to any issue to be submitted to the jury, and
upon timely motion, equalize the number of peremptory challenges so that no litigant or side is given unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges to each litigant or side.

(Tex. R. Civ. P. 233.)

Rule 233 defines ‘side’ as “one or more litigants who have common interests on the matters with which the jury is concerned.” (Tex. R. Civ. P. 233.)

In allocating strikes in multiple-party litigation, the trial court must determine if parties who ostensibly are on the same side of a lawsuit are ‘antagonistic’ or not. (Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 [Tex. 1986].) In order to determine whether parties on the same side are ‘antagonistic’, the trial court must consider the pleadings, information disclosed by pretrial discovery, information and representations made during voir dire of the jury panel, and any other information disclosed by pretrial proceedings that are brought to the attention of the court. (Id. at 736; Perkins v. Freeman, 518 S.W.3d 532, 533-34 [Tex. 1974].)

When no antagonism exists between parties on the same side, each side is entitled to the same number of strikes. (Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 [Tex. 1986]; Moore v. Altra Energy Techs., Inc., 321 S.W.3d 727, 744-45 [Tex. App. 2010].)

Response

The United States Supreme Court held that racially motivated use of peremptory challenges in criminal cases violates due process of law and requires reversal. (Batson v. Kentucky, 476 U.S. 78 [1986].) The court has extended this decision to civil cases. (Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 630 [1991]; Davis v. Fisk Elec. Co., 268 S.W.3d 508, 516 [Tex. 2008].)

To challenge the use of peremptory strikes, a party must first make a prima facie showing of discriminatory use of strikes. (Dominguez v. State Farm Ins. Co., 905 S.W.2d 713, 715 [Tex. App. 2002].) This may be established by a suspect pattern of strikes against members of a protected class. (Id.) Specifically, the party must demonstrate that peremptory strikes were used to remove panelists who are members of a protected class, and those strikes, along with other circumstances, raise an inference that the panelist or panelists were struck based on their status. (Lott v. City of Fort Worth, 840 S.W.2d 146, 150[Tex. App. 1992].)

The Court’s Decision

Peremptory strikes are not intended to permit a party to ‘select’ a favorable jury. (Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 750 [Tex. 2006].) Judgments are frequently reversed because a striking party’s explanation for its strike was not clear and reasonably specific. (Moeller v. Blanc, 276 S.W.3d 656 [Tex. App. 2008].) Vague, all-inclusive reasons fall far short of an articulable reason that enables the trial judge to assess the plausibility of the proffered reason. (Id.)

If the court decides the parties on the same side are antagonistic, it has the discretion to determine the number of strikes to give each side so neither side has an unfair advantage. (Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 919 [Tex. 1979].) The court may proportion the strikes by increasing the strikes on one side or decreasing the strikes on the other, or both. (Id. at 920.) If the parties on one side are antagonistic to each other, they each get their own strikes. (Frank B. Hall & Co. v. Beach, Inc., 733 S.W.2d 251, 256-57 [Tex. App. 1987].)