the 272nd District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis [*], and Justice Neill
GRAY CHIEF JUSTICE
T. appeals from a judgment that terminated her parental
rights to her child, J.T. Tex. Fam. Code Ann. §
161.001(b). In this proceeding, Margaret complains that the
trial court erroneously utilized a procedure to allow jurors
to ask whatever questions they had for each witness after the
parties had concluded their questioning of the witness. The
same trial court judge that presided over this proceeding was
told over 25 years ago that this very process was improper in
a criminal trial by the highest court in this state in
criminal law matters, thus constituting reversible error.
Morrison v. State, 845 S.W.2d 882 (Tex. Crim. App.
1992). We reverse and remand.
perceive of no distinction in the law, as to this issue,
between civil and criminal jury trials, especially in a
proceeding involving the termination of parental rights
because of the fundamental liberty interest and heightened
standards of evidence and review required in proceedings of
this nature. See, generally, Santosky v. Kramer, 455
U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)
(recognizing the fundamental liberty interest a parent has in
his or her child and concluding that the state must provide a
parent with fundamentally fair procedures, including a
heightened evidentiary standard, when seeking to terminate
parental rights). There is little precedent on the issue of
juror questions in this state. Two courts of appeals have
addressed this issue in civil proceedings over twenty years
ago and found that allowing questions by jurors did not
constitute fundamental error, in large part because the
process was not objected to by the parties at trial. See
Fazzino v. Guido, 836 S.W.2d 271, 275-76 (Tex.
App.-Houston [1st] 1992, writ denied) (decided prior to
Morrison); Hudson v. Markum, 948 S.W.2d 1,
2-3 (Tex. App.-Dallas 1997, writ denied) (decided after
Morrison and rejected the analysis in
Morrison "[b]ecause Morrison objected, and
because considerations are different in the criminal
context…"). In this proceeding, both Margaret and
the Department objected in writing prior to the trial and
throughout the proceedings. The trial court denied the
written motions and overruled the objections during the
trial. The trial court granted a running objection to the
allowance of juror questions to Margaret and the Department
to the extent there may be a difference in civil and criminal
law on the issue, we agree with the rationale and holding of
the Court of Criminal Appeals in Morrison and apply
it to the facts of this proceeding and hold that it was error
to allow the jury to ask questions of the witnesses.
Moreover, allowing the jury to do so probably caused the
rendition of an improper judgment or probably prevented the
appellant from properly presenting the case to this Court.
Tex.R.App.P. 44.1(a). This is in part because, from all of
the questions tendered by the jurors, there were over 165 of
the jurors' questions actually allowed and asked by the
trial court to the witnesses, and it is impractical, if not
impossible, to isolate in the record the impact of the
evidence received in response to those questions and
determine what, if any, impact it had on the judgment. We do
not intend to imply that fewer questions would necessarily be
harmless, but hold that on this record, the manner in which
the trial was conducted significantly impaired Margaret's
ability to present the issue on appeal and show its impact on
the judgment. Tex.R.App.P. 44.1(a).
Margaret's first issue is sustained. The trial
court's judgment is reversed and this proceeding is
remanded for a new trial to be commenced on a date not later
than 180 days after this Court remands this proceeding to the
trial court. Tex. Fam. Code Ann. § 263.401(b-1)(1)(B).
[*]Justice Davis concurs with the
following note: I agree with the result of this Opinion and
the Judgment. However, I state that the historical narrative
of the Opinion pertaining to the trial court's prior
rulings is both excessive and unnecessary.
 Shortly after its decision in
Morrison, the Court of Criminal Appeals also
reversed the same trial court judge in four other convictions
stemming from similar complaints on the issue of juror
questions. See Allen v. State, 845 S.W.2d 907 (Tex.
Crim. App. 1993); Wilson v. State, 845 S.W.2d 908
(Tex. Crim. App. 1993); Nichols v. State, 845 S.W.2d