In THE INTEREST OF J.N., L.N., K.N., AND M.N., CHILDREN v. the State of Texas

Supreme Court of Texas
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No. 22-0419
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In the Interest of J.N., L.N., K.N., and M.N., Children
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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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Argued March 23, 2023

JUSTICE BUSBY delivered the opinion of the Court.

Justice Young did not participate in the decision.

Rarely is the right to be heard by a jury in competition with the
right to be heard at all. Yet Section 153.009(a) of the Family Code puts
this choice to litigants. Under this statute, parents in a divorce or
custody proceeding may request either a jury trial or an interview of
their children by the judge—but not both. The question here is what
should happen when a parent trades one right for the other and receives
neither.
In this divorce proceeding, a mother withdrew her jury demand
for the stated purpose of invoking the trial court’s statutory obligation
to interview her thirteen-year-old daughter regarding which parent she
would prefer to have determine her primary residence. The trial court
did not conduct the interview and ultimately granted the father the
exclusive right to determine the primary residence of the couple’s four
children.
We hold that (1) the trial court erred in failing to conduct the
interview, (2) such an error is subject to a harm analysis, (3) this error
was harmful because it resulted in the loss of a jury trial on disputed
fact questions, and (4) the mother is entitled to her requested remedy
that the trial court comply with Section 153.009(a). We therefore
reverse the judgment in part and remand for an interview under Section
153.009(a) followed by a new judgment regarding the child’s primary
residence.

BACKGROUND

In 2017, J.H.N. (Father) filed for divorce from M.A.N. (Mother).
The case proceeded to trial on various disputed issues in May 2019,
including which parent would have the exclusive right to determine the
primary residence of the couple’s four children. At that time, the eldest
child—their daughter, M.N.—was thirteen years old.
The Family Code provides that upon application by certain
parties, a trial court “may interview in chambers” any child and “shall
interview . . . a child 12 years of age or older” to “determine the child’s
wishes as to . . . who shall have the exclusive right to determine the
child’s primary residence.” TEX. FAM. CODE § 153.009(a). This statute
applies only to nonjury trials or hearings. Id. Therefore, a litigant must
forgo her right to a jury trial to benefit from Section 153.009(a)’s
interview provision.
More than a year before trial, Father filed a motion requesting
that the court interview the children. Mother demanded a jury trial and

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paid the jury fee, rendering Father’s request inapplicable. But Mother
withdrew her jury demand at the pretrial conference. Mother’s counsel
explained, and Mother later testified, that she did so to take advantage
of Section 153.009(a)’s mandate that the trial court interview M.N.
Following the pretrial conference, Mother’s counsel emailed a
letter to the trial court coordinator asking that she “[p]lease accept this
letter as my formal written request to schedule [M.N.], a child subject to
this suit over the age of 12, to confer with the Judge in chambers in
accordance with” Section 153.009(a) and the court’s posted policies and
procedures. The court’s policy was to schedule in-chambers interviews
in advance and conduct them after other testimony was complete.
Mother’s counsel called the coordinator nearly twenty times in an effort
to schedule the interview. At trial, Mother’s counsel again requested
that the court interview M.N. and explained that Mother withdrew her
jury-trial demand solely for that purpose. The court declined to conduct
the interview on the ground that Mother had not filed a written motion.
Immediately after trial, Mother filed a “Brief in Support of Texas
Family Code § 153.009: Interview with a Child in Chambers,” which
included a representation that M.N. preferred to reside with Mother.
Several weeks later, she filed a “Motion for Judge to Confer with
Children and Joinder of Petitioner’s Motion to Confer.” The trial court
did not rule on these filings or interview M.N.
Nearly a year later, the court issued the final divorce decree.
Mother and Father were appointed joint managing conservators of the
children, and Father was granted the exclusive right to determine the
children’s primary residence.

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The court of appeals affirmed in a split decision. 663 S.W.3d 240,
248 (Tex. App.—Dallas 2022). The panel unanimously held that the
trial court erred in failing to conduct an in-chambers interview because
Section 153.009(a)’s interview requirement is mandatory but disagreed
about whether the error was subject to a harm analysis. Compare id. at
248, with id. at 249 (Carlyle, J., dissenting). The majority held that a
harm analysis applied to the trial court’s error and that it was harmless
because interviewing the child “does not diminish the discretion of the
trial court in determining the best interests of the child.” Id. at 248
(quoting TEX. FAM. CODE § 153.009(c)). Thus, “even if M.N. had
expressed a preference to live with Mother,” the trial court “would not
have been obligated to make a different conservatorship decision.” Id.
The dissenting justice contended that a harm analysis should not
apply to violations of Section 153.009(a)’s interview requirement. Id. at
249-250 (Carlyle, J., dissenting). And, if a harm analysis did apply, the
error was harmful because the trial court’s refusal to hear from the child
“probably prevented the appellant from properly presenting the case to
the court of appeals.” Id. at 251 (citing TEX. R. APP. P. 44.1(a)(2)). 1 We
granted review.

1 The harmless error rule appears in Texas Rules of Appellate
Procedure 44.1 and 61.1, which apply in the court of appeals and this Court,
respectively. Rule 44.1(a)(1) and (2) are substantively identical to Rule 61.1(a)
and (b).

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ANALYSIS

I. The trial court erred by declining to interview the child.

We begin by considering whether the trial court’s decision not to
interview M.N. was error. In a suit affecting the parent-child
relationship, Section 153.009 of the Family Code generally provides that
a trial court conducting a nonjury trial or hearing “may” interview a
child in chambers to determine the child’s wishes on issues of possession,
access, conservatorship, and right to determine primary residence. 2 But
when the child is “12 years of age or older,” then “on the application of a
party, the amicus attorney, or the attorney ad litem for the child, the
court shall interview” the child “to determine the child’s wishes as to
conservatorship or as to the person who shall have the exclusive right to
determine the child’s primary residence.” TEX. FAM. CODE § 153.009(a)
(emphasis added).
The record shows that each element of this statutory directive
was satisfied here. M.N. was older than twelve, her mother timely
applied for the court to interview her in chambers, and there was no
dispute that she was able to express her wishes. 3 Thus, the court had a

2 The Legislature has limited this authority to hearings and issues tried
to the bench, explaining that “[i]n a jury trial, the court may not interview the
child in chambers regarding an issue on which a party is entitled to a jury
verdict.” TEX. FAM. CODE § 153.009(d).
3 We note that there may be situations in which the record shows that
an interview would not enable the court to determine a child’s wishes, such as
when the child cannot express her wishes or an interview would likely
endanger the child’s welfare by causing her significant physical or emotional
distress. See, e.g., In re C.R.D., No. 12-20-00143-CV, 2021 WL 3779224, at *3
(Tex. App.—Tyler Aug. 25, 2021, no pet.). But the record here reveals no such
concern.

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duty to interview her in chambers, and it erred by declining to do so. See
TEX. GOV’T CODE § 311.016(2) (“‘Shall’ imposes a duty.”).
The trial court declined to conduct the interview because Mother
had not filed a written motion before trial, but we agree with the court
of appeals that the statute does not require a written motion to be filed.
663 S.W.3d at 247. The record shows that Mother: emailed a letter to
the court coordinator prior to trial requesting an interview “in
accordance with Sec. 153.009(a) of the Texas Family Code”; called the
court nearly twenty times to schedule the interview; reiterated her
request at trial; and submitted two written requests after trial, one of
which included a representation that M.N. preferred to reside with her.
Because Mother made the court aware of her application to interview
M.N. in chambers at a time when the court could have acted on it, the
court erred by declining to conduct the interview.

II. An analysis of the harm caused by the error is required.

As a general rule, “[n]o [civil] judgment may be reversed on appeal
on the ground that the trial court made an error of law unless” that error
was harmful. TEX. R. APP. P. 44.1(a), 61.1. Mother argues that harm
analysis is inapplicable here. We conclude, however, that a trial court’s
violation of Section 153.009(a)’s interview mandate does not fall within
any of the recognized exceptions to the harm requirement.
The mandatory nature of a statute does not foreclose a harm
analysis. In re D.I.B., 988 S.W.2d 753, 757-59 (Tex. 1999). The exclusion
of evidence is also generally subject to a harm analysis, see, e.g., State v.
Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009), as is

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the erroneous denial of a civil jury trial, see, e.g., Halsell v. Dehoyos, 810
S.W.2d 371, 372 (Tex. 1991).
On the other hand, there are some structural errors in the
constitution of the trial mechanism itself that defy meaningful analysis
by harmless-error standards. In re K.R., 63 S.W.3d 796, 799-800 (Tex.
2001). Typically, these errors involve denials of constitutional rights
basic to fair criminal trials, such as the deprivation of counsel, the denial
of a public trial, or the refusal to honor a defendant’s right of self-
representation. See id. at 800. And “[i]n some instances,” such as a trial
before a disqualified judge or unremedied discrimination in jury
selection, “the harm flowing from a trial court’s [structural] error in a
civil or [juvenile] case may be apparent from the nature of the error and
the particular facts.” In re D.I.B., 988 S.W.2d at 759; see, e.g., United
Rentals N. Am., Inc. v. Evans, ___ S.W.3d ___, 2023 WL 3398566, at *5-7
(Tex. May 12, 2023) (purposeful race discrimination in jury selection not
remedied by trial court); In re Union Pac. Res. Co., 969 S.W.2d 427, 428
(Tex. 1998) (disqualified judge).
Excluding M.N.’s testimony was not a structural error of this sort;
it was an error in the trial process that violated a statute. Therefore, we
must consider whether the error was harmful under Rule 61.1.

III. The error probably caused the rendition of an improper
judgment.

An error warrants reversal when it either “(a) probably caused
the rendition of an improper judgment; or (b) probably prevented the
petitioner from properly presenting the case to the appellate courts.”
TEX. R. APP. P. 61.1. This harm analysis requires a reviewing court to

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evaluate the impact of the error on the trial court’s final judgment or the
judgment’s review by an appellate court.
When a trial court fails to interview a child under
Section 153.009(a), the relevant consequence of the error generally will
be the improper exclusion of the child’s testimony, and a reviewing court
will analyze the potential influence of that testimony on the judgment
under Rule 44.1(a)(1) or 61.1(a). See, e.g., Cent. Expressway Sign
Assocs., 302 S.W.3d at 870; Interstate Northborough P’ship v. State, 66
S.W.3d 213, 220 (Tex. 2001). In this case, however, the trial court’s error
had two relevant consequences: (1) it incorrectly excluded M.N.’s
testimony, and (2) it caused Mother to give up her right to a jury based
on a false premise. As we find the latter dispositive, we begin our
analysis there.
When a trial court errs, the error’s consequences may ripple
beyond its effect on the proceedings at the moment the error is
committed. The error may also retroactively undermine decisions made
before trial in reliance on the trial court not erring. Specifically, we have
recognized that when a trial court’s error causes a litigant to select a
factfinder based on a false premise, a reviewing court should determine
whether the error was harmful by looking at what the litigant gave up
in reliance on the trial court following the law.
In In re D.I.B., for example, a juvenile defendant opted for a jury
trial after the trial court erroneously informed her that it lacked the
authority to grant probation. 988 S.W.2d at 760. In reliance on the
court’s statement, the defendant gave up her preferred factfinder—a
judge—so that she could seek probation. Id. As (1) the defendant was

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entitled to rely on the trial court to state the law correctly; (2) the trial
court erred in doing so; and (3) the defendant gave up her preferred
factfinder based on the false premise that the court’s statement was
correct, the harm analysis focused on the litigant’s loss of a bench trial.
Id.
Similarly, in Mercedes-Benz Credit Corp. v. Rhyne, we considered
the harm of a trial court’s decision to deny a jury trial to a litigant who
had relied on the court’s order setting the case on the jury docket. 925
S.W.2d 664, 665 (Tex. 1996). The trial court set the case on the jury
docket and issued an order announcing it had done so. Id. In reliance
on the trial court following its order, the petitioner did not pay the jury
fee more than thirty days before trial. Id. at 666; see TEX. R. CIV. P. 216.
But, as in In re D.I.B., the petitioner’s reliance, while reasonable, was
misplaced. The trial court disregarded its order, denied the petitioner’s
request for a jury trial due to the untimely payment, and proceeded with
a bench trial. Rhyne, 925 S.W.2d at 665-66. Again, (1) the litigant was
entitled to rely on the trial court to follow its order, see id. at 666; (2) the
trial court abused its discretion in failing to do so, see id.; and (3) the
litigant did not take further action to secure its preferred factfinder
based on the premise that the court would follow its order, see id., which
proved to be false. Therefore, the harm analysis focused on what the
petitioner lost in reliance on the trial court following its order: a jury
trial. Id.
The unique circumstances found in In re D.I.B. and Rhyne are
also present here. First, Mother was entitled to rely on the trial court
to follow the statutory mandate of Section 153.009(a) and interview

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M.N. As discussed above, all requirements for an interview were met
here. In this situation, a party is entitled to rely on the court to follow
the legislative mandate, just as the court’s policy indicated it would.
Second, the trial court erred by declining to interview M.N. as the
statute required.
Third, in reliance on the trial court following the statute and its
policy, Mother gave up her preferred factfinder—a jury—so that she
could have M.N. interviewed by the court. This circumstance is present
when the record shows that but for the interview request, the parent
would have pursued a jury trial. A jury demand and payment of the jury
fee followed by an express waiver of a jury is sufficient, but it is not
necessary. A parent may also make clear in writing or on the record
that her reason for not demanding a jury or for withdrawing a prior
demand was to have the trial court interview the child.
The record here shows that Mother had requested, paid for, and
was therefore constitutionally entitled to a jury trial. See TEX. CONST.
art. V, § 10. After securing this right, Mother stated—repeatedly—that
she gave up the right only to benefit from Section 153.009(a)’s
mandatory interview provision. See TEX. FAM. CODE § 153.009(a)
(mandating interviews only in certain nonjury trials or hearings). But
the premise that the court would follow the statute and its policy if she
gave up her right to a jury trial proved to be false. Under these
circumstances, the proper focus of the harm analysis is on what Mother
gave up in reliance on the trial court following the law: a jury trial. 4

4 We caution that the harm analysis of In re D.I.B. and Rhyne is
appropriate for violations of Section 153.009(a) only when the record shows

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We have concluded that when a trial court’s error causes a party
to lose her right to present her case to a jury, that error is harmful if
there were material fact issues for a jury to resolve. See In re Prudential
Ins. Co., 148 S.W.3d 124, 138-39 (Tex. 2004); Rhyne, 925 S.W.2d at 667;
Halsell, 810 S.W.2d at 372. This holding not only recognizes the gravity
of improperly foreclosing a litigant’s opportunity to be heard by a jury of
their peers 5 but also aligns with Rule 61.1(a)’s approach to harmful-
error analysis. Under that part of the rule, an error is harmful when it
“probably causes the rendition of an improper judgment.” TEX. R. APP.
P. 61.1(a). When the wrong decisionmaker makes factual
determinations, the resulting judgment is improper. Therefore, when a
suit involves material disputes of fact that are erroneously resolved by
the court rather than a jury, the judgment is improper and reversal
appropriate.

that the parent would have pursued a jury trial but for the interview request.
Otherwise, a harm analysis evaluating a trial court’s failure to follow
Section 153.009(a)’s interview mandate need not consider a litigant’s loss of a
jury trial. As noted above, when a trial court fails to interview a child under
Section 153.009(a), the harm analysis generally will evaluate the impact of the
excluded testimony on the judgment under Rule 44.1(a)(1) or 61.1(a). See Cent.
Expressway Sign Assocs., 302 S.W.3d at 870; Interstate Northborough P’ship,
66 S.W.3d at 220.
5 See TEX. CONST. art. I, § 15 (“The right of trial by jury shall remain
inviolate. The Legislature shall pass such laws as may be needed to . . .
maintain its purity and efficiency.”); Gen. Motors Corp. v. Gayle, 951 S.W.2d
469, 476 (Tex. 1997) (orig. proceeding) (“The right to jury trial is one of our
most precious rights, holding ‘a sacred place in English and American
history.’”); City of Garland v. Dall. Morning News, 969 S.W.2d 548, 558 (Tex.
App.—Dallas 1998) (“Denials of the right to a jury trial are closely
scrutinized.”), aff’d, 22 S.W.3d 351 (Tex. 2000); Harding v. Harding, 485
S.W.2d 297, 300 n.3 (Tex. App.—San Antonio 1972, no writ).

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Here, material fact issues exist. A primary issue in this case—
the determination of which joint managing conservator has the
exclusive right to designate the primary residence of M.N.—is a matter
appropriate for resolution by a jury. See TEX. FAM. CODE § 105.002.
Relevant to this determination are several subsidiary fact issues,
including what joint managing conservatorship arrangement is in the
best interest of M.N. and M.N.’s preferences regarding conservatorship.
See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (listing “desires
of the child” as first factor in best-interest determination). Because
selecting which parent will designate M.N.’s primary residence involves
factual disputes that Mother would have been entitled to have a jury
resolve, Mother’s loss of that opportunity was harmful. See In re
Prudential Ins. Co., 148 S.W.3d at 138-39; Rhyne, 925 S.W.2d at 667;
Halsell, 810 S.W.2d at 372.

IV. Mother is entitled to a partial reversal and remand for an
interview.

Having concluded that the trial court’s error was harmful under
Rule 61.1(a), we now turn to the appropriate remedy for that error.
Given the time-sensitive nature of determinations involving the parent-
child relationship, we note that a court of appeals receiving a case like
this one may wish to determine at the outset whether an interview was
required. If so, the court could abate the appeal and remand for the trial
court to conduct the interview and (if necessary) amend its judgment.
In other cases, circumstances may have materially and substantially
changed during the pendency of the appeal, requiring a new trial. See,
e.g., TEX. FAM. CODE § 156.101(a).

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In this case, Mother requested only that this Court reverse and
remand the case to the trial court for compliance with
Section 153.009(a). We therefore reverse the portion of the judgment
giving Father the exclusive right to designate M.N.’s primary residence,
and we remand for the trial court to conduct the interview and issue an
amended judgment on the primary residence issue. 6

CONCLUSION

Section 153.009(a) imposed a mandatory obligation on the trial
court to interview M.N., and it erred by declining to do so. As Mother
gave up her right to a jury trial based on the false premise that the
interview would occur and the case involves disputed fact issues, this
error resulted in the rendition of an improper judgment under
Rule 61.1(a). Consequently, we reverse the portion of the court of
appeals’ judgment affirming the trial court’s judgment giving Father the
exclusive right to designate M.N.’s primary residence. We remand the
case for the trial court to interview M.N. under Section 153.009(a) and
issue an amended judgment regarding which parent has the right to

6 Because we are reversing the final judgment on this issue, the trial
court’s December 7, 2017 temporary orders giving Father the right to designate
M.N.’s primary residence will be in effect until modified by the trial court or
superseded by an amended judgment.

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designate M.N.’s primary residence, as well as any other proceedings
necessary to that judgment.

J. Brett Busby
Justice

OPINION DELIVERED: June 9, 2023

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