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 
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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 selfrepresentation. 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 peers5 but also aligns with Rule 61.1(a)’s approach to harmfulerror 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 parentchild 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