Jury Deliberations, Hung Juries and Mistrials in Texas
Jury deliberation is the private discussion in which jurors answer the judge's questions. In a Texas civil trial there is no fixed time limit, and the same 10 of 12 jurors (5 of 6 in a six-person jury) must agree on every answer. If they cannot agree, the judge may discharge them and the case is set for trial again. This guide explains each step.
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Who decides a Texas civil case
Under Section 62.201 of the Texas Government Code, a jury in a district court is made up of 12 people, although the parties may agree to try a particular case with fewer. Section 62.301 sets the jury in county courts and justice courts at six. The earlier stages that lead to a trial are covered in how to file a personal injury lawsuit.
The jury does not simply announce a winner. It answers written questions in the court's charge, such as whether a party was negligent, what percentage of responsibility each party bears and what amount of money would compensate the injured person. The judge then enters a judgment based on those answers.
How deliberations begin
Rule 226a of the Texas Rules of Civil Procedure contains the instructions the judge reads to the jury. Once the jurors retire, the first thing they must do is choose a presiding juror. They may discuss the case only when all of them are together in the jury room, and they may not do any independent investigation or research about the case.
Rule 281 controls what goes into the room. Jurors may take the written charge and instructions and any written evidence, but not the depositions of witnesses. Notes they took during trial may go with them only with the court's permission, and under Rule 226a those notes stay with the bailiff when the jury is not deliberating.
Questions, read-backs and further instructions
Under Rule 285, the jury may communicate with the court by telling the officer in charge, and then speaking through the presiding juror in open court, verbally or in writing. Rule 226a tells the presiding juror to give written questions to the bailiff, who passes them to the judge. If the jury wants more instruction on a point of law, Rule 286 requires the question in writing, and the judge answers in writing.
Jurors sometimes remember testimony differently. Rule 287 allows them, on request, to have the disputed part of a witness's testimony read to them from the court reporter's notes. If the notes cannot be read, the judge may have the witness repeat that testimony, and a disputed portion of a deposition may be read again in the same way.
The 10 of 12 rule, and when the vote must be unanimous
Rule 292(a) allows a verdict by the same 10 or more members of an original jury of 12, or the same 5 or more of an original jury of 6. The agreement must cover each and all of the answers, so a shifting group of 10 is not enough. If as many as three jurors die or become disabled, the 9 who remain from an original 12 may return a verdict, and a less than full verdict must be signed by each juror who agrees with it.
Exemplary damages require more. Rule 292(b) and Section 41.003(d) of the Civil Practice and Remedies Code allow an award only if the jury is unanimous on both liability for and the amount of those damages, and Section 41.003(e) requires the charge to say so. Those damages usually rest on a finding of gross negligence, so a 10 to 2 split can support ordinary damages but not a punitive award.
How long a jury can deliberate
No Texas rule sets a minimum or maximum time for civil deliberations. Instead, Rule 289 lets the judge discharge a jury that has been kept together so long that it is altogether improbable it can agree. When that point arrives is left to the judge, so the length of deliberations varies from one trial to the next.
Before giving up, a judge may send the jurors back with further instructions. In Stevens v. Travelers Insurance Co. (1978), the Supreme Court of Texas held there is no precedential restriction on properly worded verdict-urging instructions, but it said that a charge addressed specifically to the minority jurors of a deadlocked panel is inherently coercive. Each instruction is judged by its terms and the circumstances in which it was given.
What a sequestered jury means in a Texas civil trial
A sequestered jury is one kept together and apart from the public. Rule 282 says that jurors who retire to deliberate are kept together in a convenient place, under the charge of an officer, until they agree on a verdict or are discharged. The same rule lets the judge allow them to separate temporarily for the night, for meals and for other proper purposes.
Rule 284 requires the judge, right after the jury is selected, to tell jurors to turn off their phones in the courtroom and while deliberating, and not to post about the case online or search for information outside the courtroom. If jurors are allowed to separate, they must also be told not to communicate with anyone about the case or let anyone address them about it.
Hung jury vs mistrial, and what happens next
A hung jury is one that cannot reach the agreement the law requires. A mistrial is the result: the trial ends without a verdict. Rule 289 allows discharge when the jurors cannot agree and the parties consent, when agreement has become altogether improbable, when a calamity or accident requires it, or when illness or another cause reduces the jury below the number required in that court.
A mistrial is not a ruling for either side. Rule 289 says the case is placed back on the jury docket and set for trial again as the court directs, so both sides prepare for a second trial and the time an injury case takes grows. Many parties use that pause to return to settlement talks or mediation.
When a verdict is returned, and how criminal trials differ
Under Rule 293, an agreed verdict is delivered to the clerk and read aloud. Rule 294 gives any party the right to poll the jury, and if any juror answers that it is not his or her verdict, the jury is sent back for further deliberation. Because so few injury claims ever reach this stage, the share of cases that go to trial is worth understanding before a case is filed.
Criminal trials follow different rules. Article 36.29(a) of the Code of Criminal Procedure requires a felony verdict to be concurred in by each juror, so no 10 to 2 split is possible. Article 36.31 allows a criminal jury to be discharged when it cannot agree and both parties consent, or when it has been kept together so long that agreement is altogether improbable.
Summary
A Texas civil jury deliberates in private after the judge reads the charge, and the same 10 of 12 jurors (5 of 6 on a six-person jury) must agree on every answer. Exemplary damages are the exception: under Rule 292(b) and Section 41.003 of the Civil Practice and Remedies Code, the jury must be unanimous on liability for them and the amount. No rule sets a time limit, but under Rule 289 the judge may discharge a jury that cannot agree, and the case goes back on the jury docket for a new trial setting.
| Outcome | What it takes | Source |
|---|---|---|
| Verdict on actual damages | The same 10 of 12 (or 5 of 6) jurors agree on every answer | Rule 292(a) |
| Verdict awarding exemplary damages | All jurors agree on liability for and the amount | Rule 292(b); CPRC 41.003(d) |
| Jury sent back to keep deliberating | A juror disagrees when the jury is polled | Rule 294 |
| Discharge by agreement | Jurors cannot agree and the parties consent | Rule 289 |
| Discharge by the judge | Agreement has become altogether improbable, or a calamity, accident or loss of jurors requires it | Rule 289 |
| After any discharge | Case goes back on the jury docket and is set for a new trial | Rule 289 |
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Frequently asked questions
There is no set time limit. The Texas Rules of Civil Procedure do not fix a minimum or maximum, and deliberations continue until the jury reaches a verdict or the judge discharges it. Under Rule 289, the judge may discharge a jury that has been kept together so long that agreement is altogether improbable, or when the jurors cannot agree and the parties consent.
A sequestered jury is kept together and separated from outside contact. In a Texas civil trial, Rule 282 says deliberating jurors are kept together under the charge of an officer until they reach a verdict or are discharged, but the judge may let them separate for the night, for meals and for other proper purposes. Rule 284 then requires the judge to instruct them not to discuss the case with anyone.
A hung jury is a jury that cannot reach the required agreement, which in a Texas civil case means the same 10 of 12 jurors on every answer. A mistrial is the outcome when a trial ends without a verdict. A hung jury is one cause of a mistrial, but Rule 289 also allows discharge after a calamity, an accident or the loss of jurors.
Neither side wins or loses. Under Rule 289 of the Texas Rules of Civil Procedure, the case is placed back on the jury docket and set for trial again as the court directs. The parties prepare for a second trial with a new jury, and they remain free to settle the case or try mediation before the new trial date.
Not for most answers. Rule 292 allows a verdict by the same 10 of 12 jurors, or 5 of 6 on a six-person jury. Exemplary damages are different: Rule 292(b) and Section 41.003(d) of the Civil Practice and Remedies Code require a unanimous jury on both liability for those damages and their amount. Felony criminal verdicts also require every juror to agree.
The Valentine Law Firm handles Texas personal injury cases. This guide is general information about Texas law, not legal advice.
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