In re Commitment of Hill, No. 10-0280 (Tex. Mar. 11, 2011)(per curiam)(jury selection, peremptory
A party selecting jurors for trial must be given latitude to intelligently use its peremptory challenges to
seat a jury that, to the greatest extent possible, is free from bias. Here, because the trial court refused to
allow two permissible lines of questioning, we reverse the court of appeals’ judgment upholding the trial
court’s ruling and remand this case for a new trial.
The trial court abused its discretion in rejecting these two lines of permissible questioning. Accordingly,
without hearing oral argument, we grant the petition for review, reverse the court of appeals’ judgment,
and remand the case to the trial court for a new trial. Tex. R. App. P. 59.1, 60.2(d).
IN RE COMMITMENT OF SETH HILL; from Montgomery County; 9th district (09-08-00482-CV, 308 SW3d 465, 03-25-10)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the
Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion [pdf]
View Electronic Briefs in 10-0280 IN RE SETH HILL
In re Commitment of Hill (Tex. 2011)(per curiam)
In re Commitment of Seth Hill, Petitioner.
Supreme Court of Texas.
Opinion delivered: March 11, 2011.
A party selecting jurors for trial must be given latitude to intelligently use its peremptory challenges to seat a jury
that, to the greatest extent possible, is free from bias. Here, because the trial court refused to allow two
permissible lines of questioning, we reverse the court of appeals' judgment upholding the trial court's ruling and
remand this case for a new trial.
This is an appeal from a civil commitment proceeding in which a jury found Seth Hill to be a sexually violent
predator. See TEX. HEALTH & SAFETY CODE ch. 841 (providing for the civil commitment of certain violent
sexual offenders). The State had the burden to prove that Hill (1) was a "repeat sexually violent offender" and (2)
"suffer[ed] from a behavioral abnormality" that made him "likely to engage in a predatory act of sexual violence."
Id. § 841.003. As such, much of Hill's trial focused on his sexual history, which formed the basis for the State's
expert witness's conclusion that Hill suffered from a behavioral abnormality. During its pretrial deposition of Hill,
the State explored Hill's sexual activity with other inmates in an all-male facility. In the deposition, Hill admitted to
these acts. The State's expert testified at trial that "if somebody has heterosexual preferences and then they
later begin practicing homosexual acts, it infers that there is an instability within their personality which again, is
more evidence of why I diagnosed [Hill] with a personality disorder."
During voir dire, Hill's attorney inquired, without objection, whether potential jurors could be fair to a person they
believed to be a homosexual. Several stated that they would not be able to give a fair trial to such a person. The
court then instructed Hill's attorney to terminate that line of questioning. When Hill's attorney attempted several
more times to raise the issue, the trial court directed him not to ask a direct question about Hill's homosexuality.
Subsequently, the court stated that further questions would have to be submitted in advance.
Hill's attorney then attempted to ask the panel whether, if the State proved that Hill had committed two or more
violent sexual offenses, the potential jurors would convict Hill based on that evidence alone or would also require
the State to prove the statute's second element—that Hill had a behavioral abnormality predisposing him to
commit such acts. The State objected to this line of questioning, calling Hill's questions improper commitment
questions, and the court sustained the objection. When Hill's attorney attempted to rephrase his question, he
was again told that the question was prohibited. After the jury returned its verdict that Hill met the statutory
criteria, the trial court signed a judgment, and the court of appeals affirmed. 308 S.W.3d 465, 485.
Litigants have the right to question potential jurors to discover biases and to properly use peremptory
challenges. See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749-50 (Tex. 2006). This right is "constrained
by reasonable trial court control." Id. at 750. Thus, refusals to allow lines of questioning during voir dire are
reviewed under an abuse of discretion standard. Id. at 753-54. However, the proper discretion inquiry turns on
the propriety of the question: "a court abuses its discretion when its denial of the right to ask a proper question
prevents determination of whether grounds exist to challenge for cause or denies intelligent use of peremptory
challenges." Babcock v. Nw. Mem'l Hosp., 767 S.W.2d 705, 709 (Tex. 1989). A party preserves error by a timely
request that makes clear—by words or context—the grounds for the request and by obtaining a ruling on that
request, whether express or implicit. TEX. R. APP. P. 33.1. Thus, in Babcock, we held that a party preserved
error by asking a specific and proper question, stating the basis on which it sought to ask that question, and
obtaining an adverse ruling from the trial court. 767 S.W.2d at 708.
Hill's sexual history was part of the State's proof of his alleged behavioral abnormality, yet the trial court refused
questioning that went to the potential jurors' ability to give him a fair trial. This prevented Hill from discovering the
potential jurors' biases so as to strike them for cause or intelligently use peremptory challenges. See TEX.
GOV'T CODE § 62.105(4) (naming "bias or prejudice . . . against a party in [a] case" as grounds for disqualifying
Babcock was a medical malpractice case in which the plaintiff attempted to ask the venire panel whether the
"liability insurance crisis" recently in the news had resulted in improper bias in any of the jurors. Babcock, 767 S.
W.2d at 706-07. The trial court repeatedly denied requests to ask such questions. Id. at 707-08. We held that,
while the facts of the lawsuit crisis would not be evidence at trial, the media coverage surrounding the crisis "ha
[d] unquestionably created the potential for bias and prejudice," and, therefore, the plaintiff should have been
permitted to ask questions delving into that potential bias. Id. at 708. We further held that the trial court abused
its discretion by forbidding those questions, and error was preserved. Id. at 709. We reversed and remanded for
a new trial. Id.
The court of appeals did not reach the abuse of discretion issue because it held that Hill failed to preserve error.
308 S.W.3d at 471. However, the questions Hill asked were proper, and there was no need for him to rephrase
because there were no defects for him to cure. Moreover, he made clear why he was entitled to ask the
requested questions. The court instead ordered him to ask a question that did not address the issue of juror
bias and then directed him to "move on" without asking any further questions on the topic. But the candid
admissions of bias by the potential jurors, before the trial court suspended that line of questioning, establish
both the propriety of the question and the trial court's abuse in denying Hill the right to ask it. As such, error was
preserved. Babcock, 767 S.W.2d at 708; Vasquez, 189 S.W.3d at 758 (holding that a trial court "may not
foreclose a proper line of questioning" where "the actual questions posed are proper").
The trial court rejected the second line of inquiry as improper commitment questions. This ruling was incorrect,
however, because the "commitment" that the potential jurors were asked to make was legislatively mandated:
they were asked whether they would require the state to prove both elements of a conjunctive statute. See TEX.
HEALTH & SAFETY CODE § 841.003. Jurors swear an oath to render "a true verdict . . . according to the law . . .
and to the evidence." TEX. R. CIV. P. 236. Implicit in that oath is a commitment to follow the law the Legislature
enacted, and a party participating in jury selection may solicit from potential jurors that promise, essential to the
empaneling of a fair jury. See, e.g., Wainwright v. Witt, 469 U.S. 412, 419-20 (1985) (recognizing, in a criminal
case, that jurors may be asked to commit to follow law and statute); see also Edmonson v. Leesville Concrete
Co., Inc., 500 U.S. 614, 630 (1991) ("Civil juries, no less than their criminal counterparts, must follow the law and
act as impartial factfinders."). The trial court thus abused its discretion by refusing to permit the line of
questioning. Hill preserved error by asking a proper question and receiving a direct ruling rejecting it. See
Vasquez, 189 S.W.3d at 758 (to preserve error, a party must "adequately apprise the trial court of the nature of
the inquiry" (quotations omitted)); Babcock, 767 S.W.2d at 708 (holding that a refusal to allow a question is an
implicit ruling on a request to ask that question).
The trial court abused its discretion in rejecting these two lines of permissible questioning. Accordingly, without
hearing oral argument, we grant the petition for review, reverse the court of appeals' judgment, and remand the
case to the trial court for a new trial. TEX. R. APP. P. 59.1, 60.2(d).
Also see: Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per